Hate Singh Bhagat Singh v.

State of Madhya Bharat -In that case, this Court has no doubt
referred to the fact that it was important to put to the accused each material fact which is
intended to be used against him and to afford him a chance of explaining it if he can.

Mohinder Singh v. The State - In that case. it has been observed by this Court that it has
always been considered to be duty of the prosecution, in a case where death is due to injuries
or wounds caused by a lethal weapon, to prove by expert evidence that it was likely or at least
possible for the injuries to have been caused with the weapon with which and in the manner
in which they are alleged to have been caused.

Dahyabhai v. State of Gujarat , under Section 105, read with the definition of "shall presume"
in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis
of which the benefit of an Exception (such as the one on which right of private defence is
claimed), as proved unless, after considering the matters before it, it believes that the said
circumstances existed or their existence was so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that they did exist.

There may be cases where, despite the failure of the accused to discharge his burden under
Section 105, the material brought on the record may, in the totality of the facts and
circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt
with regard to the mens rea requisite for an offence under Section 299 of the Code (See
Dahyabhai v. State of Gujarat (ibid) State of U. P. v. Ram Swarup , Pratap v. State of U.P.,
Nathulal case.

In our opinion, though the material brought on the record is insufficient to prove affirmatively
the defence version that the Seep of the accused was pelted with stones and damaged, it does
establish a reasonable possibility, falling short of a preponderating probability as to the
existence of that fact.- Yogendra Morarji vs state of Gujarath.

The burden of establishing the plea of self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in favour of that plea on the basis of
the material on record. Munshi Ram and Ors. v. Delhi Administration , State of Gujarat v. Bai
Fatima, State of U.P. v. Mohd. Musheer Khan, and Mohinder Pal Jolly v. State of Punjab .

Salim Zia v. State of U.P. - It is true that the burden on an accused person to establish the plea
of self-defence is not as onerous as the one which lies on the prosecution and that, while the
prosecution is required to prove its case beyond reasonable doubt, the accused need not
establish the plea to the hilt and may discharge his onus by establishing a mere preponderance
of probabilities either by laying basis for that plea in the cross-examination of the prosecution
witnesses or by adducing defence evidence.

The accused need not prove the existence of the right of private defence beyond reasonable
doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is
in favour of his plea.- In the case of James Martin

Non-explanation of the injuries sustained by the accused at about the time of occurrence or in
the course of altercation is a very important circumstance. But mere non-explanation of the
injuries by the prosecution may not affect the prosecution case in all cases. This principle
applies to cases where the injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and disinterested, so probable,
consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the
prosecution to explain the injuries. - Lakshmi Singh v. State of Bihar and James Martin vs
State of Kerala

Jai Dev v. State of Punjab, it was observed that as soon as the cause for reasonable
apprehension disappears and the thereat has either been destroyed or has been put to route,
there can be no occasion to exercise the right of private defence.

In order to find whether right of private defence is available or not, the injuries received by
the accused, the imminence of threat to his safety, the injuries caused by the accused and the
circumstances whether the accused had time to have recourse to public authorities are all
relevant factors to be considered. Similar view was expressed by this Court in Biran Singh v.
State of Bihar. Wassan Singh v. State of Punjab, Sekhar alias Raja Sekharan v. State
represented by Inspector of Police, T.N.,

The right of self-defence is a very valuable right, serving a social purpose and should not be
construed narrowly- Vidhya Singh v. State of M.P

Butta Singh v. The State of Punjab- a person who is apprehending death or bodily injury
cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the
number of injuries required to disarm the assailants who were armed with weapons. In
moments of excitement and disturbed mental equilibrium it is often difficult to expect the
parties to preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is imminent by use of
force, it would be lawful to repel the force in self-defence and the right of private-defence
commences, as soon as the threat becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or
even marginal overstepping. Due weightage has to be given to, and hyper technical approach
has to be avoided in considering what happens on the spur of the moment on the spot and
keeping in view normal human reaction and conduct, where self-preservation is the
paramount consideration. But, if the fact situation shows that in the guise of self-preservation,
what really has been done is to assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of right of private-defence can legitimately
be negatived.

The right of private defence is essentially a defensive right circumscribed by the governing
statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be
allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive
purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful
aggression and not as retaliatory measure- James Martin Vs State of Kerala
No person has any right to destroy another's property in the guise of bandh or hartal or strike,
irrespective of the proclaimed reasonableness of the cause or the question whether there is or
was any legal sanction for the same.- James Martin vs State of Kerala.

Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension
of atrocious crime enumerated in several clauses of the section is shown to exist. First clause
of Section 100 applies to cases where there is reasonable apprehension of death while second
clause is attracted where a person has a genuine apprehension that his adversary is going to
attack him and he reasonably believes that the attack will result in a grievous hurt. In that
event he can go to the extent of causing the latter's death in the exercise of the right of private
defence even though the latter may not have inflicted any blow or injury on him.- Darshan
Singh vs State of Punjab.

The right to protect one's own person and property against the unlawful aggressions of others
is a right inherent in man. The The law does not require a law-abiding citizen to behave like a
coward when confronted with an imminent unlawful aggression. As repeatedly observed by
this court there is nothing more degrading to the human spirit than to run away in face of
danger. The right of private defence is thus designed to serve a social purpose and deserves to
be fostered within the prescribed limits.- Darshan Singh vs State of Punjab.

The legal position which has been crystallized from a large number of cases is that law does
not require a citizen, however law-abiding he may be, to behave like a rank coward on any
occasion. This principle has been enunciated in Mahandi v. Emperor; Alingal Kunhinayan &
Another v. Emperor; In re Ranganadham Perayya,.

A man is justified in resisting by force anyone who manifestly intends and endeavours by
violence or surprise to commit a known felony against either his person, habitation or
property. In these cases he is not obliged to retreat, and may not merely resist the attack
where he stands but may indeed pursue his adversary until the danger is ended, and if in a
conflict between them he happens to kill his attacker, such killing is justifiable."- Russel on
Crime.

According to Hari Singh Gours celebrated book on Penal Law of India, self-help is the first
rule of criminal law.

But there is another form of homicide which is excusable in self-defence. There are cases
where the necessity for self- defence arises in a sudden quarrel in which both parties engage,
or on account of the initial provocation given by the person who has to defend himself in the
end against an assault endangering life.- Darshan Singh Vs State of Punjab.

In Laxman Sahu v. State of Orissa this court observed that it is needless to point out in this
connection that the right of private defence is available only to one who is suddenly
confronted with immediate necessity of averting an impending danger not of his creation.

In Jagtar Singh v. State of Punjab this court held that "the accused has taken a specific plea of
right of self-defence and it is not necessary that he should prove it beyond all reasonable
doubt. But if the circumstances warrant that he had a reasonable apprehension that death or
grievous hurt was likely to be caused to him by the deceased or their companions, then if he
had acted in the right of self- defence, he would be doing so lawfully."

In Puran Singh & Others v. The State of Punjab court observed that in the following
circumstances right of private defence can be exercised :-

i. There is no sufficient time for recourse to the public authorities

ii. There must be a reasonable apprehension of death or grievous hurt to the person
or danger to the property concerned.
iii. More harm than necessary should not have been caused.

In Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC 406 this court had held as
under:- "It is established on the record that Ramswaroop was being given lathi blows by the
complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to
save his father from further blows. A lathi is capable of causing a simple as well as a fatal
injury. Whether in fact the injuries actually caused were simple or grievous is of no
consequence. It is the scenario of a father being given lathi blows which has to be kept in
mind and we are of the view that in such a situation a son could reasonably apprehend danger
to the life of his father and his firing a gun-shot at that point of time in defence of his father is
justified."

In Gotipulla Venkatasiva Subbrayanam & Others v. The State of Andhra Pradesh & Another,
this court held that "the right to private defence is a very valuable right and it has been
recognized in all civilized and democratic societies within certain reasonable limits."

In light of various judgements, the apex court in the case of Darshan Singh gave the
following set of principles for Private Defence.
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal
jurisprudence of all civilized countries. All free, democratic and civilized countries recognize
the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the

necessity of averting an impending danger and not of self creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation.
In other words, it is not necessary that there should be an actual commission of the offence in
order to give rise to the right of private defence. It is enough if the accused apprehended that
such an offence is contemplated and it is likely to be committed if the right of private defence
is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and
it is coterminous with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with
any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate
or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to
consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond
reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or
wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in
exercise of self defence inflict any harm even extending to death on his assailant either when
the assault is attempted or directly threatened.

Emperor vs Ram Saiya- Mere abduction is not a crime. it is not a crime unless it is done with
intention to do any other act. So, mere abduction without any motive does not give rise to any
right to private defence. But later, the case is overruled by Vishwanath vs State of Up where
the court held that, all that Section 100 requires is that, there is an assault against the human
body and that might also be abduction against ones will.

The occasion to apply the provisions of the section does not arise in the instant case since the
question as to whether the accused believed in good faith on account of a mistake of fact that
he was bound by law to do the act which is alleged to constitute an offence, would arise only
if, to the extent relevant in this case, the order or command of the superior officer is not
justified or is otherwise unlawful. Since the situation prevailing at the scene of the offence
was such as to justify the order given by the Deputy Commissioner of Police to open fire, the
respondents can seek the protection of that order and plead in defence that they acted in
obedience to that order and therefore they cannot be held guilty of the offence of which they
are charged. That is the purport of the illustration to section 76.- State of WB vs Shew
Mangal Singh.

Instances of unsoundness of mind of this description would be such as these : A person

strikes another, and in consequence of an insane delusion thinks he is breaking a jar. Here he
does not know the nature of the act. Or he may kill a child under an insane delusion that he is
saving him from sin and sending him to heaven. Here he is incapable of knowing by reason
of insanity that he is doing what is morally wrong. Or he may under insane delusion believe
an innocent man whom he kills to be a man that was going to take his life; in which case, by
reason of his insane delusion, he is incapable of knowing that he is doing what is contrary to
the law of the land. Queen Empress vs Nader Sayer Shah

It may be that our law, like the law of England, limits non-liability only to those cases in
which insanity affects the cognitive faculties; because it is thought that those are the cases to
which the exemption rightly applies, and the cases, in which insanity affects only the
emotions and the will, subjecting the offender to, impulses, whilst it' leaves the cognitive
faculties unimpaired, have been left outside the exception, because it has been thought that
the object of the criminal law is to make people control their insane as well as their sane
impulses, or to use the words of Lord Justice Bramwell in Beg v. Humphreys 10 Clark &
Finnelly, - "to guard against mischievous propensities and homicidal impulses." It might be
said of our law as it has been said of the law of England by Sir J. STEPHEN that even as it
stands, the law extends the exemption as well to cases where insanity affects the offender's
will and emotions as to those whore it affects his cognitive faculties, because where the will
and emotions are affected by the offender being subjected to insane impulses, it is difficult to
say that his cognitive faculties are not affected. In extreme cases that may be true;. but we are
not prepared to accept the view as generally correct that a person is entitled to exemption
from criminal liability under our law in cases, in which it is only shown that he is subject to
insane impulses, notwithstanding that it may appear clear that his cognitive faculties, so far as
we can judge from his acts and words, are left unimpaired.- Queen Empress vs Nader Sayer
Shah, To take such a view as. this would be to go against the plain language of Section 84 of
the Indian Penal Code, and the received interpretation of that section. See the cases of Queen-
Empress v. Lakshman Dagdu, Queen-Empress-. v. Venkatasami and Queen-Empress v. Razai
Mia.

Mayne summarises INSANITY as follows:

"Whether there was deliberation and preparation for the act; whether it was done in a manner
which showed a desire to concealment ; whether after the crime, the offender showed
consciousness of guilt and made efforts to avoid detections whether, after his arrest, he
offered false excuses and made false statements. All facts of this sort are material as bearing
on the test, which Bramwall, submitted to a jury in such a case : `Would the prisoner have
committed the act if there had been a policeman at his elbow ? It is to be remembered that
these tests are good for cases in which previous insanity is more or less established. These
tests are not always reliable where there is, what Mayne calls, "inferential insanity".

There are four kinds of persons who may be said to be non compos mentis (not of sound
mind),i.e.,

(1) an idiot;

(2) one made non compos by illness

(3) a lunatic or a mad man and

(4.) one who is drunk.

An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without
lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the
week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal
Pleadings,Evidence and Practice, 35th Edn. pp.31-32; Russell on Crimes and Misdemeanors,
12th Edn. Vol., p.105; 1 Hala's Pleas of the Grown 34). A person made non compos mentis by
illness is excused in criminal cases from such acts as are-committed while under the influence
of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only
at certain periods and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p.
103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired
insanity, and idiocy as natural insanity.

In Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523 (SC)), it was held that
the mere fact that no motive has been proved why the accused murdered his wife and child or
the fact that he made no attempt to run away when the door was broken open would not
indicate that he was insane or that he did not have necessary mens rea for the offence.

Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of

a psychopath affords no protection under Section 84 as the law contained in that section is
still squarely based on the outdated Naughton rules of 19th Century England. The provisions
of Section 84 are in substance the same as that laid down in the answers of the Judges to the
questions put to them by the House of Lords, in M Naughton's case (1843) 4 St. Tr. (NS) 847.
Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the
mental condition of the accused at the time of the event, but not that remote in time. It is
difficult to prove the precise state of the offender's mind at the time of the commission of the
offence, but some indication thereof is often furnished by the conduct of the offender while
committing it or immediately after the commission of the offence. A lucid interval of an
insane person is not merely a cessation of the violent symptoms of the disorder, but a
restoration of the faculties of the mind sufficiently to enable the person soundly to judge the
act; but the expression does not necessarily mean complete or prefect restoration of the
mental faculties to their original condition. So, if there is such a restoration, the person
concerned can do the act with such reason, memory and judgment as to make it a legal act ;
but merely a cessation of the violent symptoms of the disorder is not sufficient.-Sidhapal
Kamla Yadav vs State of Maharashtra.

In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the
two. He says that if the actual transaction has commenced which would have ended in the
crime if not interrupted, there is clearly an attempt to commit the crime.

In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like
they were from Bengal Coal Company. He proofread the samples two times and gave orders
for correction as well so that they would appear exactly as forms of the said company. At this
time he was arrested for attempt to make false document under section 464. However, it was
held that it was not an attempt because the name of the company and the seal were not put on
the forms and until that was done, the forgery would not be complete.

In the case of Abhayanand Mishra vs State of Bihar AI 1961, A applied to the Patna
University for MA exam and he supplied documents proving that he was a graduate and was
working as a headmaster of a school. Later on it was found that the documents were fake. It
was held that it was an attempt to cheat because he had done everything towards achieving
his goal.

The rule of impossibility to find out what constitutes attempt and what constitutes
preparation, has generated a lot of controversy ever since it was laid in the case of Queen vs
Collins, where it was held that a pickpocket was not guilty of attempt even when he put his
hand into the pocket of someone with an intention to steal but did not find anything.

Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting
to break into a building and steal goods because the goods were not there.

However, these cases were overruled in R vs King 1892, where the accused was convicted for
attempting to steal from the hand bag of a woman although there was nothing in the bag.

In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held
guilty under this section if his intention is to murder and in pursuance of his intention he does
an act towards its commission, even if that act is not the penultimate act. As per J B K
Sharma, the intention of the culprit is the key and it must be gathered from all the
circumstances and not merely from the location, number, and type of injury.

R vs Prince 1875, is an important case where a person was convicted of abducting a girl
under 18 yrs of age. The law made taking a woman under 18 from her guardian without her
guardian's permission a crime. In this case, the person had no intention to abduct her. She had
gone with the person with consent and the person had no reason to believe that the girl was
under 18. Further, the girl looked older than 18. However, it was held that by taking a girl
without her guardian's permission, he was taking a risk and should be responsible for it
because the law made it a crime even if it was done without mens rea. In this case, five rules
were laid down which are guidelines whenever a question of a mistake of fact or mistake of
law arises in England and elsewhere -

1. When an act is in itself plainly criminal and is more severely punishable if certain
circumstances coexist, ignorance of the existence is no answer to a charge for the aggravated
offence.

2. When an act is prima facie innocent and proper unless certain circumstances co-exist, the
ignorance of such circumstances is an answer to the charge.

3. The state of the mind of the defendants must amount to absolute ignorance of the existence
of the circumstance which alters the character of the act or to a belief in its nonexistence.

4. When an act in itself is wrong, and under certain circumstances, criminal, a person who
does the wrongful act cannot set up as a defence that he was ignorant of the facts which
would turn the wrong into a crime.

5. When a statute makes it penal to do an act under certain circumstances, it is a question

upon the wording and object of the statute whether responsibility of ascertaining that the
circumstances exist is thrown upon the person who does the act or not. In the former case, his
knowledge is immaterial.

The above guidelines were brought in Indian law in the case of The King vs Tustipada
Mandal AIR 1951 by Orissa HC.
In R vs Tolson 1889, a woman's husband was believed to be dead since the ship he was
traveling in had sunk. After some years, when the husband did not turn up, she married
another person. However, her husband came back and since 7 years had not elapsed since his
disappearance, which are required to legally presume a person dead, she was charged with
bigamy. It was held that disappearance for 7 yrs is only one way to reach a belief that a
person is dead. If the woman, and as the evidence showed, other people in town truly
believed that the husband died in a shipwreck, this was a mistake of fact and so she was
acquitted.

However, in R vs White and R vs Stock 1921, a person was convicted of bigamy. Here, the
husband with limited literacy asked his lawyers about his divorce, who replied that they will
send the papers in a couple of days. The husband construed as the divorce was done and on
that belief he married another woman. It was held that it was a mistake of law.

In Jogeshshwar vs Emperor, where the accused was fighting with a man and the man's
pregnant wife intervened. The accused aimed at the woman but accidently hit the baby who
was killed. He was not allowed protection under this section because he was not doing a
lawful act in a lawful manner by lawful means.

In Bhupendra Singh Chudasama vs State of Gujarat 1998, the appellant, an armed

constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam
site in dusk hours. The appellant took the plea that it was dark at that time and he saw
someone moving near the dam with fire. He thought that there was a miscreant. He shouted to
stop the person but upon getting no response he fired the shot. However, it was proven that
the shot was fired from a close range and it was held that he did not take enough precaution
before firing the shot and was convicted.

In Queen vs Lukhini Agradanini 1874 , it was held that merely the proof of age of the child
would be a conclusive proof of innocence and would ipso facto be an answer to the charge
against him.

in Hiralal vs State of Bihar 1977, the boy who participated in a concerted action and used a
sharp weapon for a murderous attack, was held guilty in the absence of any evidence leading
to boy's feeble understanding of his actions.

In English law, a boy below 14 years is deemed incapable of raping a woman but no such
protection is offered in India and in Emperor vs Paras Ram Dubey, a boy of 12 years of age
was convicted of raping a girl.

This test of Wild Beast Test, was evolved in R vs Arnold 1724. Here, the accused was tried
for wounding and attempting to kill Lord Onslow. By evidence, it was clear that the person
was mentally deranged. J Tracy laid the test as follows, "If he was under the visitation of God
and could not distinguish between good and evil and did not know what he did, though he
committed the greatest offence, yet he could not be guilty of any offence against any law
whatsoever."
This test of Insane Delusion was evolved in Hadfield's Case in 1800, where Hadfield was
charged with high treason and attempting the assassination of King George III. He was
acquitted on the ground of insane delusion. Here, the counsel pleaded that insanity was to be
determined by the fact of fixed insane delusions with which the accused was suffering and
which were the direct cause of his crime.

Danial M'Naghten was tried for the murder of a private secretary of the then prime minister
of England. He was acquitted on the ground of insanity. This caused a lot of uproar and the
case was sent to bench of fifteen judges who were called upon to lay down the law regarding
criminal responsibility in case of lunacy. Some questions were posed to the judges which they
had to answer. These questions and answers are knows as M'Naghten's Rules which form the
basis of the modern law on insanity. The following principals were evolved in this case -

1. Regardless of the fact that the accused was under insane delusion, he is punishable
according to the nature of the crime if, at the time of the act, he knew that he was acting
contrary to law.

2. Every man must be presumed to be sane until contrary is proven. That is, to establish
defence on the ground of insanity, it must be clearly proven that the person suffered from a
condition due to which he was not able to understand the nature of the act or did not know
what he was doing was wrong.

3. If the accused was conscious that the act was one that he ought not to do and if that act was
contrary to law, he was punishable.

4. If the accused suffers with partial delusion, he must be considered in the same situation as
to the responsibility, as if the facts with respect to which the delusion exists were real. For
example, if the accused, under delusion that a person is about to kill him and attacks and kills
the person in self defence, he will be exempted from punishment. But if the accused, under
delusion that a person has attacked his reputation, and kills the person due to revenge, he will
be punishable.

5. A medical witness who has not seen the accused previous to the trial should not be asked
his opinion whether on evidence he thinks that the accused was insane.

S K Nair vs State of Punjab 1997, the accused was charged for murder of one and grievous
assault on other two. He pleaded insanity. However, it was held that the words spoken by the
accused at the time of the act clearly show that he understood what he was doing and that it
was wrong. Thus, he was held guilty.

Director of Public Prosecution vs Beard 1920 was an important case in case of intoxication.
In this case, a 13 yr old girl was passing by a mill area in the evening. A watchman who was
drunk saw her and attempted to rape her. She resisted and so he put a hand on her mouth to
prevent her from screaming thereby killing her unintentionally. House of lords convicted him
for murder and the following principles were laid down -
1. If the accused was so drunk that he was incapable of forming the intent required he could
not be convicted of a crime for which only intent was required to be proved.

2. Insanity whether produced by drunkenness or otherwise is a defence to the crime charged.

The difference between being drunk and diseases to which drunkenness leads is another. The
former is no excuse but the later is a valid defence if it causes insanity.

3. The evidence of drunkenness falling short of proving incapacity in the accused to form the
intent necessary to commit a crime and merely establishing that his mind was affected by the
drink so that he more readily gave way to violent passion does not rebut the presumption that
a man intends the natural consequences.

In Ram Rattan vs State of UP 1977, SC observed that a true owner has every right to
dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing
and has not accomplished his possession, but this right is not available to the true owner if the
trespasser has been successful in accomplishing the possession to the knowledge of the true
owner. In such circumstances the law requires that the true owner should dispossess the
trespasser by taking resource to the remedies available under the law.

In Kanwar Singh's case 1965, a team organized by the municipal corporation was trying to
round up stray cattle and was attacked by the accused. It was held that the accused had no
right of private defence against the team as it was an act done by the public officials in the
colour of their office.

Ajodha Prasad vs State of UP 1924, the accused received information that they were going
to get attacked by some sections of the village. However, they decided that if they separated
to report this to the police they will be in more danger of being pursued and so they waited
together. Upon attack, they defended themselves and one of the attackers was killed. It was
held that they did not exceed the right of private defence.

Sheo Persan Singh vs State of UP 1979, the driver of a truck drove over and killed two
persons sleeping on the road in the night. People ahead of the truck stood in the middle of the
road to stop the truck, however, he overran them thereby killing some of them. He pleaded
right to private defence as he was apprehensive of the grievous hurt being caused by the
people trying to stop him. SC held that although in many cases people have dealt with the
errant drivers very seriously, but that does not give him the right of private defence to kill
multiple people. The people on the road had a right to arrest the driver and the driver had no
right of private defence in running away from the scene of accident killing several people.

Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that
when life is in peril the accused was not expected to weigh in golden scales what amount of
force does he need to use and summarized the law of private defence of body as under -

1. There is no right of private defence against an act which is not in itself an offence under
this code.
2. The right commences as soon as and not before a reasonable apprehension of danger to the
body arises from an attempt or thread to commit some offence although the offence may not
have been committed and it is continuous with the duration of the apprehension.

3. It is a defensive and not a punitive or retributive right. Thus, the right does not extend to
the inflicting of more harm than is necessary for defence.

4. The right extends to the killing of the actual or potential assailant when there is a
reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses
of section 100.

5. There must be no safe or reasonable mode of escape by retreat for the person confronted
with an impending peril to life or of grave bodily harm except by inflicting death on the
assailant.

6. The right being in essence a defensive right does not accrue and avail where there is time
to have recourse to the protection of public authorities.

In case of State of UP vs Shiv Murat 1982, it was held that to determine whether the action of
the accused was justified or not one has to look in to the bona fides of the accused. In cases
where there is a marginal excess of the exercise of such right it may be possible to say that
the means which a threatened person adopts or the force which he uses should not be weighed
in golden scales and it would be inappropriate to adopt tests of detached objectivity which
would be so natural in a court room.

Amjad Khan vs State AIR 1952 In this case, a criminal riot broke out in the city. A crowd
of one community surrounded the shop of A, belonging to other community. The crowd
started beating the doors of A with lathis. A then fired a shot which killed B, a member of the
crowd. Here, SC held that A had the right of private defence which extended to causing of
death because the accused had reasonable ground to apprehend that death or grievous hurt
would be caused to his family if he did not act promptly.

The burden of establishing the plea of self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in favour of that plea on the basis of
the material on record. - Munshi Ram and Ors. v. Delhi Administration, State of Gujarat v.
Bai Fatima, AIR, State of V. Subramani And Anr vs State Of Tamil Nadu, U.P. v. Mohd.
Musheer Khan, Mohinder Pal Jolly v. State of Punjab.

The right of self-defence is a very valuable right, serving a social purpose and should not be
construed narrowly. Vidhya Singh v. State of M.P

Insanity and related theories in Dayabhai ChaganBhai Thaker case-

(1) The prosecution must prove beyond reasonable doubt that the accused had committed the
offence with the requisite mens rea; and the burden of proving that always rests on the
prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the
crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may rebut it by
placing before the court all the relevant evidence which may be oral, documentary or
circumstantial, but the burden of proof upon him is no higher than that rests upon a party to
civil proceedings.

(3) Even if the accused was not able to establish conclusively that he was insane at the time
he committed the offence, the evidence placed before the court by the accused or by the
prosecution may raise a reasonable doubt in the mind of the court as regards one or more of
the ingredients of the offence, including mens rea of the accused and in that case the court
would be entitled to acquit the accused on the ground that the general burden of proof resting
on the prosecution was not discharged.

RATAN LAL V. THE STATE OF MADHYA PRADESH - The appellant used to set fire to his
own clothes and house, and this could hardly be called irrational; it is more like verging on
insanity.

SHRIKANT ANANDRAO BHOSALE V. STATE OF MAHARASHTRA-

1. The appellant has a family history _ his father was suffering from psychiatric illness.

2. Cause of ailment not known hereditary plays a part.

3. Appellant was being treated for unsoundness of mind since 1992 Diagnosed as suffering
from paranoid schizophrenia.

4. Within a short span, soon after the incident from 27th June to 5th December, 1994, he had
to be taken for treatment of ailment 25 times to hospital.

5. Appellant was under regular treatment for the mental ailment.

6. The weak motive of killing of wife being that she was opposing the idea of the appellant
resigning the job of a Police Constable.

7. Killing in day light no attempt to hide or run away.

BAPU ALIAS GUJRAJ SINGH V. STATE OF RAJASTHAN - Their Lordships of the Apex
Court in the decision in BAPU'S CASE (cited supra) considered the scope of Section 84 I.P.C
for exonerating a person from liability and laid down as follows: Section 84 lays down the
legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of
"unsoundness of mind" in IPC. The courts have, however, mainly treated this
expression as equivalent to insanity. But the term "insanity" itself has no precise
definition. It is a term used to describe varying degrees of mental disorder. So, every person,
who is mentally diseased, is not ipso facto exempted from criminal responsibility. A
distinction is to be made between legal insanity and medical insanity. A court is concerned
with legal insanity, and not with medical insanity. Under Section 84 IPC, a person is
exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the
time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is
doing what is either wrong or contrary to law. The accused is protected not only when, on
account of insanity, he was incapable of knowing the nature of the act, but also when he did
not know either that the act was wrong or that it was contrary to law, although he might know
the nature of the act itself. He is, however, not protected if he knew that what he was doing
was wrong, even if he did not know that it was contrary to law, and also if he knew that what
he was doing was contrary to law even though he did not know that it was wrong. The onus
of proving unsoundness of mind is on the accused. But where during the investigation
previous history of insanity is revealed, it is the duty of an honest investigator to subject the
accused to a medical examination and place that evidence before the court and if this is not
done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be
given to the accused. The onus, however, has to be discharged by producing evidence as to
the conduct of the accused shortly prior to the offence and his conduct at the time or
immediately afterwards, also by evidence of his mental condition and other relevant factors.
Every person is presumed to know the natural consequences of his act. Similarly every
person is also presumed to know the law. The prosecution has not to establish these facts.

The section itself provides that the benefit is available only after it is proved that at the time
of committing the act, the accused was labouring under such a defect of reason, from disease
of the mind, as not to know the nature and quality of the act he was doing, or that even if he
did not know it, it was either wrong or contrary to law then this section must be applied. The
crucial point of time for deciding whether the benefit of this section should be given or not, is
the material time when the offence takes place. In coming to that conclusion, the relevant
circumstances are to be taken into consideration, it would be dangerous to admit the defence
of insanity upon arguments derived merely from the character of the crime. It is only
unsoundness of mind which naturally impairs the cognitive faculties of the mind that can
form a ground of exemption from criminal responsibility. Stephen in History of the Criminal
Law of England, Vol. II, p.166 has observed that if a person cuts off the head of a sleeping
man because it would be great fun to see him looking for it when he woke up, would
obviously be a case where the perpetrator of the act would be incapable of knowing the
physical effects of his act. The law recognises nothing but incapacity to realise the nature of
the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently
dim to apprehend what he is doing, he must always be presumed to intend the consequence of
the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be,
cannot in the absence of plea and proof of legal insanity, bring the case within this
section. ...........

Para 12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive
behaviour of a psychopath affords no protection under Section 84 as the law contained in that
section is still squarely based on the outdated M'Naughton rules of 19th century England. The
provisions of Section 84 are in substance the same as those laid down in the answers of the
Judges to the questions put to them by the House of Lords, in M'Naughton's case ((1843) 4 St
Tr NS 847 (HL)). Behaviour, antecedent, attendant and subsequent to the event, may be
relevant in finding the mental condition of the accused at the time of the event, but not that
remote in time. It is difficult to prove the precise state of the offender's mind at the time of the
commission of the offence, but some indication thereof is often furnished by the conduct of
the offender while committing it or immediately after the commission of the offence. A lucid
interval of an insane person is not merely a cessation of the violent symptoms of the disorder,
but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge
the act; but the expression does not necessarily mean complete or perfect restoration of the
mental faculties to their original condition. So, if there is such a restoration, the person
concerned can do the act with such reason, memory and judgment as to make it a legal act;
but merely a cessation of the violent symptoms of the disorder is not sufficient. Para 13. The
standard to be applied is whether according to the ordinary standard, adopted by reasonable
men, the act was right or wrong. The mere fact that an accused is conceited, odd, irascible
and his brain is not quite all right, or that the physical and mental ailments from which he
suffered had rendered his intellect weak and had affected his emotions and will, or that he had
committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at
short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal
in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the
application of this section.

Bapu alias Gujraj Singh v. State of Rajasthan, in which it has been held as follows:

The standard to be applied is whether according to the ordinary standard, adopted by

reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd,
irascible and his brain is not quite all right, or that the physical and mental ailments from
which he suffered had rendered his intellect weak and had affected his emotions and will, or
that he had committed certain unusual acts in the past, or that he was liable to recurring fits of
insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing
abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the
application of this section.

Further, while delivering the judgement, Justice Pasayat said, "Every person, who is mentally
diseased is not ipso factoexempted from criminal liability. A distinction is to be made
between legal insanity and medical insanity. The accused is protected not only when, on
account of insanity, he was incapable of knowing the nature of the act, but also when he did
not know either that the act was wrong or that it was contrary to law, although he might know
the nature of the act itself. He is, however, not protected if he knew that what he was doing
was wrong, even if he did not know that it was contrary to law, and also if he knew that what
he was doing was contrary to law even though he did not know that it was wrong. The onus
of proving unsoundness of mind is on the accused."

The Bench said, "The law recognises nothing but incapacity to realise the nature of the act
and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to
apprehend what he is doing, he must always be presumed to intend the consequence of the
action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot
in the absence of plea and proof of legal insanity, bring the case within this section."
Hari Singh Gond v. State of Madhya Pradesh, in which it has been held as follows:

Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of
mind. There is no definition of unsoundness of mind in IPC. The courts have, however,
mainly treated this expression as equivalent to insanity. But the term insanity itself has no
precise definition. It is a term used to describe varying degrees of mental disorder. So, every
person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A
distinction is to be made between legal insanity and medical insanity. A court is concerned
with legal insanity, and not with medical insanity.

Relying on the above 2, the court in Surendranath Mishra vs state of Jharkhand opined
that,

In our opinion, an accused who seeks exoneration from liability of an act under Section 84
of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression
unsoundness of mind has not been defined in the Indian Penal Code and it has mainly been
treated as equivalent to insanity. But the term insanity carries different meaning in different
contexts and describes varying degrees of mental disorder. Every person who is suffering
from mental disease is not ipso facto exempted from criminal liability. The mere fact that the
accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and
mental ailments from which he suffered had rendered his intellect weak and affected his
emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he
was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are
not sufficient to attract the application of Section 84 of the Indian Penal Code.

And it further said,

The onus has to be discharged by producing evidence as to the conduct of the accused prior
to the offence, his conduct at the time or immediately after the offence with reference to his
medical condition by production of medical evidence and other relevant factors.

Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code
will not come to its rescue, in case it is found that the accused knew that what he was doing
was wrong or that it was contrary to law.

In order to ascertain that, it is imperative to take into consideration the circumstances and
the behaviour preceding, attending and following the crime. Behaviour of an accused
pertaining to a desire for concealment of the weapon of offence and conduct to avoid
detection of crime go a long way to ascertain as to whether, he knew the consequences of the
act done by him. Reference in this connection can be made to a decision of this Court in the
case of T.N. Lakshmaiah v. State of Karnataka

In State of M.P. v. Ahmadull, it was held that, Mere ipse dixit of the accused is not enough
for availing of the benefit of the exceptions under Chapter IV.
In the case of Sooguru Subrahmanyam Vs State of A.P, it was observed by the Apex court
while dealing with the motive and prof that, In some cases, it may not be difficult to establish
motive through direct evidence, while in some other cases, inferences from circumstances
may help in discerning the mental propensity of the person concerned.

In the case of Nathuni Yadav and others v. State of Bihar and another it was laid down
that, : -

17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot
normally see into the mind of another. Motive is the emotion which impels a man to do a
particular act. Such impelling cause need not necessarily be proportionally grave to do grave
crimes. Many a murders have been committed without any known or prominent motive. It is
quite possible that the aforesaid impelling factor would remain undiscoverable. Though, it is
a sound proposition that every criminal act is done with a motive, it is unsound to suggest that
no such criminal act can be presumed unless motive is proved. After all, motive is a
psychological phenomenon. Mere fact that prosecution failed to translate that mental
disposition of the accused into evidence does not mean that no such mental condition existed
in the mind of the assailant.

Lord Chief Justice Champbell struck a note of caution in R. v. Palmer thus:

But if there be any motive which can be assigned, I am bound to tell you that the
adequacy of that motive is of little importance. We know, from experience of criminal courts
that atrocious crimes of this sort have been committed from very slight motives; not merely
from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time
pressing difficulties.

Mere absence of motive for a crime, howsoever atrocious in may be, cannot in the absence of
plea and proof of legal insanity, bring the case within this section The Supreme Court in
Sherall walli Mohammed v. State held that the mere fact that no motive has been proved
why the accused murdered his wife and child or the fact that he made no attempt to run away
when the door was broken open would not indicate that he was insane or that he did not have
necessary mens rea for the offence. Mere abnormality of mind or partial delusion, irresistible
impulse or compulsive behaviour of a psychopath affords no protection Under Section 84 as
the law contained in that section is still squarely based on the out dated Naughton rules of
19th Century England.

In Sidheswari Bora v. The State of Assam, a Bench of Gauhati High Court where the
accused killed her ailing child of three and there was also some evidence elicited in cross-
examination to show that the accused had suffered from some mental derangement two years
prior to the incident, it was held that the mere fact that the murder was committed on a
sudden impulse or as a mercy killing was no ground to give her the benefit of Section 84,
IPC, even though both uthanesia (mercy killing) and irresistible impulse would entitle the
accused in England to get the benefit of diminished responsibility and her crime would be
treated as man-slaughter (i. e., culpable homicide not amounting to murder).
In Ajaya Mahakud vs State it was decided that, Behaviour, antecedent, attendant and
subsequent to the event, may be relevant in finding the mental condition of the accused at the
time of the event, but not that remote in time.

State of Punjab v. Mohinder Singh, in which it has been held as follows:

"The doctor had examined accused a little before as also a little after the occurrence and he
was found insane. The detailed reasons given by both Dr. Harbans Lal and Dr. Ramkumar
have been corroborated by each other. From the evidence also it is clear that he was talking in
a very unusual manner saying things to the effect that he had seen Lord Shiva in front of him
and the alike. It cannot be said that the finding of the High Court was wrong. In view of these
circumstances we are not in a position to take a different view particularly when the appellant
was suffering from schizophrenia."

Reading, C.J., observed : " The crux of the whole question is whether this man was suffering
from epilepsy at the time he committed the crime. Otherwise it would be a most dangerous
doctrine if a man could say, 'I once had an epileptic fit, and everything that happens hereafter
must be put down to that'. "

In dismissing the appeal the learned Chief Justice said:" Every man is presumed to be sane
and to possess a sufficient degree of reason to be responsible for his acts unless the contrary
is proved. To establish insanity it must be clearly proved that at the time of committing the
act the party is labouring under such defect of reason as not to know the nature and quality of
the act which he is committing-that is, the physical nature and quality as distinguished from
the moral-or, if he does know the nature and quality of the act he is committing, that he does
not know that he is doing wrong...... There is, however, evidence of a medical character
before the jury, and there are statements made by the prisoner himself, that he has suffered
from epileptic fits. The Court has had further evidence, especially in the prison records, of his
having had attacks of epilepsy. But to establish that is only one step; it must be shown that the
man was suffering from an epileptic seizure at the time when he committed the murders; and
that has not been proved. "

The insanity (in the sense of whole class of mental ailments, i. e., in the sense of mental
disorder) of a defendant may have to be considered by the court in three different
connections, determined by the time when the insanity was shown to exist:

(1) insanity at the time of the doing of the wrong;'

(2) insanity at the time of trial;

(3) insanity after conviction.

The third is of importance in affixing the punishment; the second determines whether the
defendant can be tried, but the first, and the first only, has to do with the question of the
defendant's guilt. Hence, the insanity that is material in determining responsibility for a
wrong committed, is that which existed at the time the wrong was done.- Clouston, "Mental
Diseases."
 Investigation

In Pala Singh and Another v. State of Punjab1wherein this Court has clearly held that where
the FIR was actually recorded without delay and the investigation started on the basis of that
FIR and there is no other infirmity brought to the notice of the Court then, however improper
or objectionable the delay in receipt of the report by the Magistrate concerned, in the absence
of any prejudice to the accused it cannot by itself justify the conclusion that the investigation
was tainted and prosecution insupportable. As far as the commencement of the investigation
is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect.
In such circumstances we do not find any infirmity in the case of prosecution on that score. In
fact the above decision was subsequently followed in Sarwan Singh & Others v. State of
Punjab2, Anil Rai vs. State of Bihar 3 and Aqeel Ahmad vs. State of U.P.4

DEATH SENTENCE- PUNISHMENT

Age definitely is a factor which cannot be ignored, though not determinative factor in all fact
situations. The probability that the accused persons could be reformed and rehabilitated is
also a factor to be borne in mind. To award death sentence, the aggravating circumstances
(crime test) have to be fully satisfied and there should be no mitigating circumstance
(criminal test) favouring the accused. Even if both the tests are satisfied as against the
accused, even then the Court has to finally apply the Rarest of Rare Cases test (R-R Test),
which depends on the perception of the society and not judge-centric, that is whether the
society will approve the awarding of death sentence to certain types of crime or not. While
applying this test, the Court has to look into variety of factor like societys abhorrence,
extreme indignation and antipathy to certain types of crimes like rape and murder of minor
girls, especially intellectually challenged minor girls, minor girls with physical disability, old
and infirm women with those disabilities etc. examples are only illustrative and not
exhaustive. Courts award death sentence, because situation demands, due to constitutional
compulsion, reflected by the will of the people, and not Judge centric.- Guruvail Singh @
gala Vs state of Punjab

1 AIR 1972 SC 2679

2 (AIR 1976 SC 2304)

3 (2001 Supp. 1 SCR 298)

4 (2008) 17 SCR 1330.

The principle of rarest of rare case enunciated in Bachan Singh v. State of Punjab 5, has been
restated and emphasized time and again in the above referred to decisions. In order to
appreciate the principle in a nutshell, what is stated in Haresh Mohandas Rajput v. State of
Maharashtra 6can be usefully referred to which reads as under:-

The rarest of rare case comes when a convict would be a menace and threat to the
harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but
may not be in the category of the rarest of the rare case. There must be no reason to believe
that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal
acts of violence as would constitute a continuing threat to the society. The accused may be a
menace to the society and would continue to be so, threatening its peaceful and harmonious
coexistence. The manner in which the crime is committed must be such that it may result in
intense and extreme indignation of the community and shock the collective conscience of the
society. Where an accused does not act on any spur-of-the moment provocation and indulges
himself in a deliberately planned crime and meticulously executes it, the death sentence may
be the most appropriate punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless women. Thus, in case the
crime is committed in a most cruel and inhuman manner which is an extremely brutal,
grotesque diabolical, revolting and dastardly manner, where his act affects the entire moral
fibre of the society e.g. crime committed for power of political ambition or indulging in
organized criminal activities, death sentence should be awarded. It is, therefore, well-settled
that awarding of life sentence is the rule, death is an exception. The application of the rarest
of rare case principle is dependant upon and differs from case to case. However, the
principles laid down earlier and restated in the various decisions of this Court referred to
above can be broadly stated that in a deliberately planned crime, executed meticulously in a
diabolic manner, exhibiting inhuman conduct in a ghastly manner touching the conscience of
everyone and thereby disturb the moral fibre of the society would call for imposition of
capital punishment in order to ensure that it acts as a deterrent. Machhi Singh v. State of
Punjab7 , Swamy Shraddananda v. State of Karnataka 8, Santosh Kumar Satishbushan Bariyar

5 [1980 (2) SCC 684]

6 [2011(12) SCC 56]

7 [AIR 1983 SC 957]

8 [2008 (13) SCC 767]

v. State of Maharashtra9, Mohd. Farooq Abdul Gafur v. State of Maharashtra10, State of
Maharashtra v. Goraksha Ambaji Adsul.11

This provision makes it obligatory in cases of conviction for an offence punishable with death
or with imprisonment for life or for a term of years to assign reasons .in sup- port of the
sentence awarded to the convict and further ordains that in case the Judge awards the death
penalty, "special reasons" for such sentence shall be stated in the judgment. When the law
casts a duty on the Judge to state reasons it follows that he is under a legal obligation to
explain his choice of the sentence. It may seem trite to say so, but the existence of the 'special
reasons clause' in the above provision implies that the Court can in fit cases impose the
extreme penalty of death which negatives the contention that there never can be a valid
reason to visit an offender with the death penalty, no matter how cruel, gruesome or shocking
the crime may be. It may be stated that if a Judge finds that he is unable to explain with
reasonable accuracy the basis for selecting the higher of the two sentences his choice should
fall on the lower sentence. In all such cases the law casts an obligation on the Judge to make
his choice after carefully examining the pros and cons of each case. Where the incidence of a
certain crime is rapidly growing and is assuming menacing proportions, for example, acid
pouring or bridge burning, it may be necessary for the Courts to award exemplary punish-
ments to protect the community and to deter others from committing such crimes..- Allauddin
Mian Vs state of Bihar. The court, further, in this case, held that, Sentences of severity are
imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just
punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the
community from further similar conduct. It serves a three-fold purpose

(i) punitive
(ii) deterrent and
(iii) protective.

That is why this Court in Bachan Singh's case observed that when the question of choice of
sentence is under consideration the Court must not only look to the crime and the victim but
also the circumstances of the criminal which, to be termed means, Victimogenesis and the
impact of the crime on the community. Unless the nature of the crime and the circumstances
of the offender reveal that the criminal is a menace to the society and the sentence of life
imprisonment would be altogether inadequate, the Court should ordinarily impose the lessor
punishment and not the extreme punishment of death which should be reserved for
exceptional cases only.

9 [2009 (6) SCC 498]

10 [2010 (14) SCC 641]

11 [AIR 2011 SC 2689]

Then the court observed that, in the subsequent decision of Machhi Singh v. State of
Punjab12, this Court, after culling out the guidelines laid down in Bachan Singh's case,
observed that only in those exceptional cases in which the crime is so brutal, diabolical and
revolting as to shock the collective conscience of the community, would it be permissible to
award the death sentence.

Every saint has a past and every sinner a future, never write off the man wearing the
criminal attire but remove the dangerous degeneracy in him, restore his retarded human
potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the
repressive, though hidden, injustice of the social order which is vicariously guilty of the
criminal behavior of many innocent convicts. Law must rise with life and jurisprudence
responds to humanism.13

clinching wealth of circumstances. Guilt once established, the punitive dilemma begins.

In, Jagmohan Singh v. State of U. P.(1), there was an argument about the absence of
procedure laid down by the law for determining whether the sentence- of death or something
less is appropriate in the case. The Court viewed this Criticism from the constitutional angle
and observed :

"The Court is primarily concerned with all the facts and circumstances in so far as
they are relevant to the crime and how it was committed and since at the end of the trial he is
liable to be sentenced, all the facts and circumstances bearing upon the crime are legitimately
brought to the notice of the court. Apart from the cross-examination of the witnesses. the
Criminal Procedure Code requires that the accused must be questioned with regard to the
circumstances appearing against him in the evidence. He is also questioned generally on the
case and there is an opportunity for him to say whatever he wants to say. He has a right to
examine himself as a witness, thereafter, and give evidence on the material facts. Again he
and his counsel are at liberty to address the court not merely on the question of guilt but also
on the question of sentence. In important cases like murder the court always gives a chance to
the accused to address the court on the question of sentence." "The sentence follows the
conviction, and it is true that no formal procedure for producing evidence with reference to
the sentence is specifically provided. The reason is that relevant facts and circumstances
impinging on the 'nature and circumstances of the crime are already before the court."

In any scientific system which turns the focus, at the sentencing stage, not only on the crime
but also the criminal, and seeks to personalise the punishment so that the reformatory
component is as ,much operative as the deterrent element, it is essential that facts of a social
and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the
guilt, may have to be brought to the notice of the Court when the actual sentence is

12 [1983] 3 SCC 470

13 Krishna Iyer J., Death Sentence on Death Sentence, The INDIAN ADVOCATE: JOURNAL OF THEBAR
ASSOCIATION OF INDIA
determined. It cannot be emphasised too often that crime and punishment are functionally
related to the society in which they occur, and Indian conditions and stages of progress must
dominate the exercise of judicial discretion in this case. In India the subject of capital
punishment has abortively come before Parliament earlier, although our social scientists have
not made any sociological or statistical study in depth yet. On the statutory side there has
been a significant change since India became free.

Under s.367(5) of the Criminal Procedure Code, as it stood before its amendment by Act 26
of 1955, the normal rule was to sentence to death a person convicted for murder and to
impose the lesser sentence for reasons to be recorded in writing. By amendment, this
provision was deleted with the result that the court is now free to award either death sentence
or life imprisonment, unlike formerly when death was the rule and life term the exception, for
recorded reasons. In the new Criminal Procedure Code, 1973 a great change has overtaken
the law. Section 354(3) reads :

"354(3) When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded, and, in the case of sentence of death, the
special reasons for such sentence."

Justice Stanley Mosk of California uttered in a death sentence case : "As a judge, I am bound
to the law as I find it to be and not as I fervently wish it to be".14

In the case of Jagmohan Singh vs The State Of U. P15, it was held that,

The first submission is based on the provisions of Article 19 of the Constitution. That
Article does not directly deal with the freedom to live. It deals with 7 freedoms like freedom
of speech, and expression, freedom to assemble peaceably and without arms etc., but not
directly with the freedom to live. It is, however, contended that freedom to live is basic to all
the several freedoms and since the enjoyment of those seven freedoms is impossible without
conceding freedom to live, the latter cannot be denied by any land unless such law is
reasonable and is required in general public interest. It was, therefore, contended that, unless
it was shown that the sentence 'of death for murder passed the test of reasonableness and
general public interest, it would not be a valid law.

In State of Madras v. V. G. Row16 it was held that,

14 (The Yale Law Journal, Vol. 82, No. 6, P.1138)

15 1973 SCR (2) 541

16 [1952] S.C.R. 597.

 "It is important in this context to bear in mind that the test of reasonableness,
wherever prescribed, should be applied to each individual statute impugned, and

1. no abstract standard or-

2. general pattern,

of reasonableness can be laid down as applicable to all cases.

A. The nature of the right alleged to have been infringed

B. the underlying purpose of the restrictions imposed.
C. the extent and urgency of the evil sought to be remedied thereby.
D. The disproportion of the imposition,
E. the prevailing conditions at the time.

should all enter into the judicial verdict. In evaluating such elusive factors and forming their
own conception of what is reasonable, in all the circumstances of a given case, it is inevitable
that the social philosophy and the scale of values of the judges participating in the decision
should play an important part, and the limit to their interference with legislative judgment in
such cases can only be dictated by their sense of responsibility and self-restraint and the
sobering reflection that the Constitution is meant not only for people of their way of thinking
but for all, and that the majority of the elected representatives of the people have, in
authorising the imposition of the restrictions, considered them to be reasonable."

In order to discuss about, JUDGES DISCRETION we must first see England law 17, the
discretion of judges is as follows,

"DISCRETION OF COURT AS TO PUNISHMENT In all crimes except those for

which the sentence of death must be pronounced a very wide discretion in the matter of fixing
the degree of punishment is allowed to the Judge who tries the case. The policy of the law is,
as regards most crimes, to fix a maximum penalty, which is intended only for the worst cases,
and to leave to the discretion of the judge the determination of the extent to which in a
particular case the punishment awarded should approach to or recede from the maximum
limit. The exercise of this discretion is a matter of prudence and not of law, but appeal lies by
the leave of the Court of Criminal Appeal against an sentence not fixed by law, and if leave is
given, the sentence can be altered by that court. Minimum penalties have in some instances
been prescribed by the enactment creating the offence."

In India, it is totally, with the hands of the judges. It is as observed in Rathan Lal, Law on
Crimes,18

"The authors of the Code had,, in' many cases not heinous, fixed a minimum as well as a
maximum punishment. The Committee were of opinion that, considering the general terms in
which offences were defined, it would be inexpedient, in most cases, to fix a minimum

17 Halsbury in Laws of England, Third Edition, Volume 10 at page 486.

18 Twenty-Second Edition page 93

punishment; and they had accordingly so altered the Code as to leave the minimum
punishment for all offences, except those of the gravest nature, to the discretion of the Judge
who would have the means in each case of forming an opinion as to the character of the
offender, and the circumstances, whether aggravating or mitigating, under which the offence
had been committed. But with respect to some heinous offence-such as offences against the
State, murder, attempt to commit murder, and the like-they had thought it right to fix a
minimum punishment". Unlike these, in england, there is no scope of discretion in the hands
of the judges which received a huge criticism from the public and the same was pointed out
by the Royal Commission.19

In the whole code there is only one section (Section '303) where death is prescribed as the
only punishment for murder by a person under sentence for imprisonment for life. There, are
several other sections in which death sentence could be imposed, but that sentence is not
mandatory. Under two sections namely

1. section 302--murder, and

2. section 121---waging-war against the Government of India,

alternative punishments of death or imprisonment for life are to be levied. These are the
two sections where the maximum punishment is death and the minimum is
imprisonment for life. There are two other sections in the Indian Penal Code where the
minimum punishment is prescribed-one is section 397 which provides that if at the time of
committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt
to any person, or attempts to cause death or grievous hurt to any person, the imprisonment
with which such offender shall be punished shall not be less than seven years and Section 396
which provides that at the time of attempting to commit robbery or dacoity, the offender is
armed with any deadly weapon, the imprisonment with which such offender shall be
published shall not be less than seven years. As regards the rest of the offences, even those
cases where the maximum punishment is the death penalty, a wide discretion to punish is
given to the Judge. The reasons are explained by Ratanlal on the punitive means referred
above.

"Circumstances which are properly and expressly recognized by the law as

aggravations calling for in creased severity of punishment are principally such as consist in
the manner in which the offence is perpetrated; whether it be by forcible or fraudulent means,
or by aid of accomplices or in the malicious motive by which the offender was actuated, or
the consequences to the public or to individual sufferers, or the special necessity which exists
in particular cases for counteracting the temptation to offend, arising from the degree of
expected gratification, or the facility of perpetration peculiar to the case. These considerations
naturally include a number of particulars, as of time, place, per- sons and things, varying
according to the nature of the case. Circumstances which are to be considered in alleviation
of punishment are :
19 Jagmohan Singh vs State of Uttar Pradesh.
 1. the minority of the offender;
2. the old age of the offender;
3. the condition of the offender e.g., wife, apprentice;
4. the order of a superior military officer;
5. provocation;
6. when offence was committed under a combination of circumstances and influence
of motives which are not likely to recur either with respect to the offender or to
any other;
7. the state of health and the sex of the delinquent.

Bentham mentions the following circumstances in mitigation of punishment which should be

inflicted :

(1) absence of bad intention;

(2) provocation;

(3) self preservation;

(4) preservation of some near friends;

(5) transgression of the limit of self-defence;

(6) submission to the menaces;

(7) submission to authority;

(8) drunkenness;

(9) childhood."

The court, in the case of Jagmohan Singh Vs State of Uttar Pradesh, 20 held that, death
sentence is not at all against the right to life guaranteed under the Article 21 of the
Constitution.

In the case of Kehar Singh vs Union of India, it was held that, President is of an executive
character, and when the petitioner files his petition it is for him to submit with it all the
requisite information necessary for the disposal of the petition. He has no right to insist on
presenting an oral argument. The manner of consideration of the petition lies within the
discretion of the President, and it is for him to decide how best he can acquaint himself with
all the information that is necessary for its proper and effective disposal. The President may
consider sufficient the information furnished before him in the first instance or he may send
for further material relevant to the issues which he considers pertinent, and he may, if he
considers it will assist him in treating with the petition, give an oral hearing to the parties.
The matter lies entirely within his discretion.

20 1973 SCR (2) 541

In State of Rajasthan and Others v. Union of India, 21

So long as a question arises whether an authority under the Constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed
it would be its Constitutional obligation to do so this Court is the ultimate interpreter of the
Constitution and to this Court is assigned the delicate task of determining what is the power
conferred on each branch of Government, whether it is limited, and if so. what are the limits
and whether any action of that branch transgresses such limits. It is for this Court to uphold
the Constitutional values and to enforce the Constitutional limitations.

Further, in the case of in Minerva Mills Ltd. v. Union of India. 22, Bhagwati, J. said:

the question arises as to which authority must decide what are the limits on the power
conferred upon each organ or instrumentality of the State and whether such PG NO 1114
limits are transgressed or exceeded ..The Constitution has, therefore, created an independent
machinery for resolving these disputes and this independent Machinery is the judiciary which
is vested with the power of judicial review.

In U.S. v. Benz, 23 Sutherland, J. observed:

"The judicial power and the executive power over sentences are readily
distinguishable. To render judgment is a judicial function. To carry the judgment into effect is
an executive function. To cut short a sentence by an act of clemency is an exercise of
executive power which abridges the enforcement of the judgment, but does not alter it qua a
judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is
judicial act as much as the imposition of the sentence in the first instance."

It was observed by Patanjali Sastri, CJ in State of Madras v. V. G. Row 24 about constitutional

validity of death sentence-

: "It is important in this context to bear in mind that the test of reasonableness,
wherever prescribed, should be applied to each individual statute impugned, and no abstract
standard. or- general pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed. the extent and urgency of the evil sought to be remedied thereby. the
disproportion of the imposition, the prevailing conditions at the time. Should all enter into the
judicial verdict. In evaluating such elusive factors and forming their own conception of what

21 [1978] I S.C. R. 1

22 [1981] 1 S. C. R. 206

23 75 L. Ed. 354

24 [1952] S.C.R. 597.

is reasonable, in all the circumstances of a given case, it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision should play an
important part, and the limit to their interference with legislative judgment in such cases can
only be dictated by their sense of responsibility and self-restraint and the sobering reflection
that the Constitution is meant not only for people of their way of thinking but for all, and that
the majority of the elected representatives of the people have, in authorising the imposition of
the restrictions, considered them to be reasonable."

The following propositions emerge from Bachan Singh's case:

(i) the extreme penalty of death need not be inflicted except in gravest cases of

extreme culpability;

(ii) Before opting for the death penalty the circumstances of the 'offender' also

require to be taken into consideration along with the circumstances of the 'crime'.

(iii)Life imprisonment is the rule and death sentence is an exception. In other words

death sentence must be imposed only when life imprisonment appears to be an

altogether inadequate punishment having regard to the relevant circumstances of the

crime, and provided, and only provided the option to impose sentence of

imprisonment for life cannot be conscientiously exercised having regard to the nature

and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up

and in doing so the mitigating circumstances has to be accorded full weightage and a

just balance has to be struck between the aggravating and the mitigating circumstances before
the option is exercised.

The question that confronts the court is whether the offence of triple murder and the manner
of commission of crime alone would be sufficient to justify the imposition of the death
penalty.

Some of the principles regarding death penalty which have emerged are:

(1) the age of the accused; Bachan Singh vs. State of Punjab25

25 (1980) 2 SCC 684 [para 206]

(2) the possibility of reform Bachan Singh v. State of Punjab26, Rajesh Kumar vs. State (NCT
of Delhi)27 ;

(3) the socio-economic background of the accused; Mulla & Anr. vs. State of U.P.28

(4) the circumstances in which the crime has been committed Dharmendrasinh vs. State of
Gujarat;29

(5) the quality of the evidence which had prevailed with the Court in upholding the
conviction [Santosh Kumar Satishbhushan Bariyar Versus State of Maharashtra30 ; and

(6) lack of criminal antecedents Gudda vs. State of Madhya Pradesh.31

Death by Medical negligence

The negligence of the doctor is both civil, criminal or both. As already known, the main
ground for determination of crime is the guilty mind of the accused. But in the case of
medical negligence, the guilty mind cannot be proved. So, In Dr. Suresh Guptas Case 32
Supreme Court of India, 2004 the court held that the legal position was quite clear and well
settled that whenever a patient died due to medical negligence, the doctor was liable in civil
law for paying the compensation. Only when the negligence was so gross and his act was so
reckless as to endanger the life of the patient, criminal law for offence under section 304A of
Indian Penal Code, 1860 will apply.

The relevant provisions in IPC are, section 304A, section 80, 88.

Further, in the case of Jacob Mathew33, it was held that,

26 (1980) 2 SCC 684 [para 206]

27 (2011) 13 SCC 706 [Para 74]

28 (2010) 3 SCC 508 [Para 80 and 81]

29 (2002) 4 SCC 679 [Para 20]

30 [(2009) 6 SCC 498] [Para 56]

31 [(2013) 16 SCC 597 [Para 31]

32 AIR 2004 SC 4091

33 2005 (6) SCC 1 = AIR 2005 SC 3180

 The moral culpability of recklessness is not located in a desire to cause harm. It
resides in the proximity of the reckless state of mind to the state of mind present when there
is an intention to cause harm. There is, in other words, a disregard for the possible
consequences. The consequences entailed in the risk may not be wanted, and indeed the actor
may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the
risk. Certain types of violation, called optimizing violations, may be motivated by thrill-
seeking. These are clearly reckless. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or failed to do something
which in the given facts and circumstances no medical professional in his ordinary senses and
prudence would have done or failed to do. The hazard taken by the accused doctor should be
of such a nature that the injury which resulted was most likely imminent.

To further simplify this concept, High Court of Delhi in the case of Smt. Madhubala vs.
Government of NCT of Delhi34 classified negligence by doctors into three categories, namely,

(i) lata culpa, gross neglect

(ii) levis culpa, ordinary neglect, and
(iii) levissima culpa, slight neglect.

As already said, the doctors are only punished for gross negligence only.

The law of negligence has to be applied according to the facts of the case.- Kusum Sharma
Vs Batra Hospital

In the case of Brend v. Wood, Lord Goddard, C.J. held that

It is of the utmost importance for the protection of the liberty of the subject that a
court should always bear in mind that, unless a statute, either clearly or by necessary
implication, rules out mens rea as a constituent part of a crime, the court should not find a
man guilty of an offence against the criminal law unless he has a guilty mind.

Wright J. observed in Sherras v.De Rutzen.

"There is a presumption that mans rea, an evil intention of knowledge of the

wrongfulness of the act, is an essential ingredient in every offence; but that presumption is
liable to be displaced either by the words of the statute creating the offence or by the
subjectmatter with which it deals, and both must be consi- dered."

THINGS TO BE KEPT IN VIEW BEFORE DECIDING RAREST OF THE RARE

34 2005 Indlaw DEL 209 = 2005 (118) DLT 515

 In Machhi Singh's case supra it was observed:

"The following questions may be asked and answered as a test to determine the "rarest
of the rare" case in which death sentence can be inflicted:-

(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentences?

(b) Are the circumstance of the crime such that there is no alternative but to impose
death sentence even after according maximum, weightage to the mitigating circumstances
which speak in favour of the offender?

The following guidelines which emerge from Bachan Singh case (supra) will have to
be applied to the facts of each individual case where the question of imposition of death
sentence arises: (SCC p. 489, para 38):-

(i) The extreme penalty of death need not be inflicted except in gravest cases of
extreme culpability.

(ii) Before opting for the death penalty the circumstances of the `offender' also require
to be taken into consideration along with the circumstances of the `crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence
must be imposed only when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstance of the crime, and provided, and only
provided, the option to impose sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime and all the relevant
circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up

and in doing so the mitigating circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the mitigating circumstances before the
option is exercised.

In rarest of rare cases when collective conscience of the community is so shocked that
it will expect the holders of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of retaining death penalty, death
sentence can be awarded. The community may entertain such sentiment in the following
circumstances :

(1) When the murder is committed in an extremely brutal, grotesque, disbolical,

revolting or dastardly manner so as to arouse intense and extreme indignation of the
community.

(2) When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward or a cold- blooded murder for
gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of
trust, or murder is committed in the course for betrayal of the motherland.
 (3) When murder of a member of a Scheduled Caste or minority community etc., is
committed not for personal reasons but in circumstances which arouse social wrath, or in
cases of `bride burning' or `dowry deaths' or when murder is committed in order to remarry
for the sake of extracting dowry once again or to marry another woman on account of
infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders,
say of all or almost all the members of a family or a large number of persons of a particular
caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis-a-vis whom the murderer is in dominating position or a public
figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the
aforesaid proposition and taking into account the answers to the questions posed by way of
the test for the rarest of rare cases, the circumstances of the case are such that death sentence
is warranted, the court would proceed to do so."