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Criminal Appeal No. J‑483 of 1962/Confirmation Case No. 72 of 1962, decided on 22nd July 1963.
Form of charge‑Failure to set out separately case referring to hurt caused by accused to two different persons‑Defect curable under S. 537.
Plea of insanity‑ Burden on accused to prove unsoundness of mind‑Legal insanity different from medical insanity‑Mere abnormal conduct of accused not covered by exception.
Ghulam Yusuf v. The Crown P L D 1953 Lah. 213 ; State v. Balahari Das P L D 1962 Dacca 467 ; Ramdulare v. State A I R 1959 Madhya Pradesh 259 ; Hayat v. The State P L D 1959 Lah. 474 and Atta Muhammad v. The State P L D 1960 Lah. 111 ref.
‑Conduct of accused, at time of committing murder, abnormal and indicating mental imbalance‑Sentence of death reduced to transportation for life.
State v. Balahari Das P L D 1962 Dacca 467 ref.
Murtuza Hussain for Appellant.
Haider Bux for A. A.‑G. for the State.
Dates of hearing : 11th, 12th, 16th and 17th July 1963.
The appellant Chandoo son of Kaimatrai has been convicted by the learned First Additional Sessions Judge Hyderabad under section 302, P. P. C. and sentenced to death by hanging. He was also convicted for offences punishable under sections 324, 326 and 426, P. P. C. and sentenced to 3 months' R. I. under the first count, to 3 years', R. I. under the second count and to 1 month's R. I. under the third count. This matter is before us for confirmation of the death sentence passed on the appellant. He has also appealed from jail against his conviction. This judgment will, therefore, dispose of both the matter of the confirmation of the death sentence, and also the appeal of the appellant.
2. The incident took place on the 24th of April 1962, at about 6‑30 p.m. in the heart of the very busy part of the Shahi Bazar of Hyderabad. The appellant, a Hindu Bania, and a labourer, walking down the bazar came upon the shop of Noor Muhammad who was selling water‑melons from a handcart in front of the shop of Saffuddin. He asked for and was given a slice of melon for two pice. The melon was not sweet. Appellant then got behind Noor Muhammad and picked up a large melon‑cutting knife with a 6 " blade and a total length of about 15". Noor Muhammad attempted to snatch the knife from the appellant, but did not succeed in doing so. Appellant then mounted Saifuddin's shop behind the handcart, and broke the glass panes of its show‑case. Then at the point of the knife, he demanded a sum of 1 lacs of rupees from Saifuddin. Saifuddin rushed out of the shop in fear, and hastened to the Police Station, a short distance away, and there lodged his first information report. In consequence, a constable, Muhammad Hussain, rushed to the scene and along with Abdul Ghafoor, an adjacent shop‑keeper, called out to the appellant to come out of the shop. Whilst doing so, appellant stabbed Abdul Ghafoor with the knife. A crowd collected, and the appellant started to run towards the Chhotki lane where he was confronted by Abdul Aziz and others. He inflicted injuries on Abdul Aziz in the abdomen and various parts of his body with the knife. By this time, a large crowd had collected, including P. C. Shabbir Ahmed. Barkat Ali and others. They surrounded the appellant and ultimately succeeded in securing him, but not until constable Shabbir Ahmed whilst doing so had also received an injury. After being apprehended, the appellant was taken to the Police Station, and produced before the Investigating Officer, Ghulam Abbas. The blood stained knife was also produced by P. C. Shabbir Ahmed. Appellant was arrested. His blood‑stained banian was secured. There were marks of violence on his head and back which were noted in a Mashirnama. A Mashirnama of the injuries on P. C. Shabbir Ahmed and Abdul Ghafoor was also prepared. Thereafter, the investigating officer proceeded to the scene, and secured the broken pieces of glass and the blood‑stained earth in the middle of the bazar, where Abdul Aziz lay with injuries on his person. Abdul Aziz was then taken to the Civil Hospital, where he arrived in a state of shock, but conscious and was operated upon immediately. He, however, expired at 9‑55 p.m. the following day, the 25th April 1962.
3. During the committal proceedings, the appellant denied all the prosecution circumstances against him, finally contending that he had told Noor Muhammad to return the money because the melon was not sweet, on account of which Noor Muhammad started to quarrel with him, and Saifuddin and other shop‑keepers attacked him, for which reason he picked up a knife from the handcart of Noor Muhammad, and attempted to defend himself.
4. In the trial Court, the, appellant admitted that he had purchased the slice of melon from Noor Muhammad, but did not know how Noor Muhammad had received the injury, although he admitted that he had picked up the knife from Noor Muhammad's handcart. Thereafter, he continued to reply to the various questions put to him and stated that his "head was not alright", that he was not in his senses at the time, and did not know anything. He denied that the banian or vest had been secured from his person, and said that he had been informed at the Police Station that he had been given a lathi blow by one Abdul Ghafoor. He admitted that he had received injuries on his person at the time, and finally stated that he was a Hindu, and it was "zulum" with him. No defence witnesses were examined.
5. When the charge was read out to the appellant by the learned Additional Sessions Judge before proceeding with the trial, the following plea was recorded
"The accused pleads guilty. I have purchased melon from Noor Muhammad and had given blows to him. I may have given blows to others as I had lost balance."
6. Mr. Murtaza Hussain, the learned counsel who appeared for the pauper appellant, has raised the following four points in defence :‑
(1) That a defective charge was framed in this case ;
(2) That of legal insanity of the appellant ;
(3) The right of self defence of the appellant ; and
(4) Other extenuating circumstances on the basis of which it was urged that the appellant was entitled to the lesser sentence under the law.
6. Before entering upon the facts of the case, it is necessary to refer to the first point raised by Mr. Murtaza Hussain which was not seriously stressed. He contended that the charge framed was defective as the charge did not set out separately the case referring to the hurt caused to Noor Muhammad and Shabbir, to indicate to the appellant the precise nature of it. This is obviously an objection of not much consequence. On reading the charge, we find that whatever objection there may have been, is covered by the provisions of section 537(a) Cr. P. C. by which no finding or sentence passed by a Court of competent jurisdiction should be reversed or altered in appeal on account of any error, omission or irregularity in the charge, including any misjoinder of charges.
7. The second objection was with reference to section 84, P. P. C. on the plea that nothing was an offence which was done by a person, who at the time of doing it, is by reason of unsound ness of mind, incapable of knowing the nature of the acts or that he is doing what is either wrong or contrary to law. The contention was that at the time the appellant committed the acts with which he has been charged, and the circumstances surround ing them, considered with the testimony of the various pro secution witnesses, that his conduct amounted in law to legal insanity, and he was, therefore, not responsible for it, and was entitled to an acquittal.
8. We have set out in some detail the defence of the appellant during the committal proceedings At that stage the appellant was clearly raising a plea of self‑defence. He made no reference whatsoever to his state of mind. This statement was made on the 1st of September 1962. More than two, months thereafter, in his statement before the learned Additional Sessions Judge, the appellant for the first time set up a plea of "his head being not right", and of his not being in his senses at the time of the incident, and, therefore, of "not knowing anything." He further stated
"I am a Hindu. It is Zulum with me."
9. The point for determination is the state of the mind of the appellant at the time of the commission of the offence. Mr. Murtaza Hussain, however, has urged us to consider the reasonable probability that the accused has acted within the scope of legal insanity upon the evidence examined in the case. Reliance was placed on Ghulam Yusuf v. The Crown (P L D 1953 Lah. 213) in which the late Kayani, J. has defined and explained what is "Halluci nation", "Illusion" and "Delusion." He has also dealt with the question of burden of proof under section 105 of the Evidence Act.
10. In State v. Balahari Das (P L D 1962 Dacca 467) a comprehensive review of the law on this aspect of the case was made, and it was observed that‑
"In the case of a special plea of insanity under section 841 of the Penal Code 1860 the burden of proof is on the accused; and the mere creation of doubt as to the existence or otherwise s of circumstances bringing the case within the exception of section 84 of the Code is not enough. Where the plea is taken the Court should keep the following principles in view
(i) If the accused raises any special plea or claims exone ration on the basis of any special or general exception, he must prove his special plea of the existence of conditions entitling him to claim the exception.
(ii) Irrespective of the success or failure of the special plea raised by the defence or its claim to exoneration, the prose cution must prove its case beyond any reasonable doubt.
(iii) If after an examination of the entire evidence, the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused may be true or that the evidence casts a doubt on the existence of the requisite intention or mens rea which is a necessary ingredient of a particular offence, this will react on the whole prosecution case entitling the accused to the benefit of doubt.
(iv) Legal insanity as contemplated in section 84, P. P. C. is different from medical insanity. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law, he is not insane. Merely being subjected to uncontrollable impulses or insane delusions or even partial derangement of mind will not do, nor mere eccentricity or singularity of manner.
(v) If there is evidence of premeditation and design or evidence that the accused after the act in question tried to resist arrest, the plea of insanity may be negatived, and
(vi) If the facts are clear so far as the act complained of is concerned, motive is irrelevant."
This decision was arrived at after a comprehensive review of the relevant law on the point before their Lordships.
11. In Ramdulare v. State (A I R 1959 Madhya Pradesh 259) it was pointed out that
"The law presumes everyone to be of sound mind' until the contrary is proved, and the burden of proving that he was not criminally responsible for the crime by reason of his unsound ness of mind' is on the accused. Even in cases where a person subject to attack of insanity has lucid intervals, the law presumes the offence to have been committed in a lucid interval. The ac cused would therefore be better advised when setting up the plea of unsoundness of mind' to specify the type of disorder because mental disorders have now been fairly well classified and their essential characteristics described in some detail in medical text books, which make it easier to appreciate the evidence bearing on the point in record."
and that
"Speaking generally, the pattern of the crime, the circum stances under which it has been committed, the manner and method of its execution, the behaviour of the murderer before and after the commission of the crime, furnish some of the important clues to ascertain whether by reason of unsoundness of mind the accused was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law."
12. There is nothing on the record of this case through which we have been taken in detail by Mr. Murtaza Hussain to indicate that the appellant had suffered from any fits of insanity or indeed that he was not aware of what he was doing at the time. It is true that the incident in the present case took place on the spur of the moment. It must be conceded that this was not a preconceived crime, and that although some aspect of the appellant's conduct at and immediately following the crime, do appear to a certain extent peculiar, yet there is nothing on the record to indicate that his conduct amounted to what in law is termed as legal insanity.
13. In Hayat v. The State (P L D 1959 Lah. 474 at 479) it was pointed out that being eccentric, slightly weak in head, or subnormal in intellect, doe not amount to unsoundness of mind as contemplated by section 84, P. P. C. "which draws a clear distinction between ordinary unsoundness of mind and legal unsoundness of mind. A person may be of unsound mind for the purposes of those interested in diseases of the human brain, and yet may not be of unsound mind for the purposes of those who have to administer the law, because the unsoundness of the mind which the Courts can recognise is that which deprives the perpetrator of a crime of the capacity to understand the nature of his act and of the knowledge that what he was doing was wrong or contrary to law."
14. Similarly in Atta Muhammad v. The State (P L D 1960 Lah. 111) a dis tinction has been made between legal insanity and medical insanity, and it was observed :‑.
"No amount of queerness in habit, morbidity of temper, peculiarities of character or eccentricities or behaviour, or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of section 84 of the Pakistan Penal Code, although they maybe relevant factors, for determining whether or not the accused was insane."
15. In the context of these weighty judicial pronouncements, and what is the well‑settled law, and that the plea of insanity, and that the support of section 84 of the Penal Code has been urged for, the first time before us, we have had no difficulty in concluding that the appellant is not entitled to claim exemption from the liability for the murder under section 84 of the Penal Code.
16. We will proceed to examine the prosecution evidence in this case; which in the course of argument has not been contested, and indeed cannot be cast aside, for there is a galaxy of independent and disinterested witnesses supporting every circumstance of the prosecution case. The eye‑witnesses to the incidents are P. W. Noor Muhammad (Exh. 6) the first informant P. W. Saifuddin (Exh. 7), P. W. Abdul Ghafoor (Exh. 5), P. W. Muhammad Hussain (Exh. 9), Constable P. W. Shabbir Ahmed (Exh. 10), and P. W. Hassan Ali (Exh. 11). We see no reason for disbelieving them.
17. Dr. Abdul Majid (Exh 14) the Medical Officer of the Civil Hospital Hyderabad, has described the injuries on P. Ws. Shabbir Ahmed, Noor Muhammad, and the appellant Chandoo as follows
Shabbir Ahmed.
Incised wound 4" x " x skin deep (horse shoe shaped) on the lateral side of dorsum of right hand.
Noor Muhammad.
Incised wound " x " x skin deep on the inner side of the left little finger.
Appellant Chandoo.
(a) Lacerated wound on the front of left parietal region 1" x " x scalp deep.
(b) Multiple abrasions on the right thigh.
(c) Multiple abrasions on the left arm and back of shoulder.
These injuries appeared to have been caused by a blunt weapon such as a lathi. The doctor has further stated that on the 25th of April 1963, he had performed the postmortem examination on the body of the deceased Abdul Aziz, and noticed the following injuries on him :‑
(1) Incised wound " x 1 " x muscle deep on the upper part from the right chest 2" below the middle clavicular region.
(2) Incised wound 2 " x " x abdomen deep up to sub umblical region (ante mortem). This injury was extended by operation up to the middle of epigastrium.
Death was due to shock and haemorrhage on account of injury No. 2, which was individually sufficient to cause death in the ordinary course of nature. The injuries on P. W. Abdul a Ghafoor have been described by Dr. Muhammad Umer, Exh. 15, as under :‑
Abdul Ghafoor.
(1) Incised wound "x " on the left of the middle line of the abdomen in epigastrium.
(2) Incised wound 1" x " on left side of flanks below the costal margin with profuse bleeding.
(3) Incised wound 1" x " x 1" on the left hip.
There is, therefore, no doubt as to the manner and the cause of the death of the deceased Abdul Aziz, and that these injuries together with those inflicted on Shabbir Ahmed, Noor Muhammad and Abdul Ghafoor were inflicted with a sharp cutting weapon such as a big knife.
18. All these circumstances undoubtedly support the prosecution case that Abdul Aziz died as a result of the knife injuries inflicted on him, that all the three prosecution witnesses received incised injuries with a knife, and that the appellant was also struck on the head with a lathi by P. W. Abdul Ghafoor. We may, however, state here, and it was conceded by learned counsel for the State, that the injuries on P. W. Noor Muhammad and constable Shabbir Ahmed do not appear to have been intentionally inflicted by the appellant. On their own showing, in the course of their testimony, these injuries were caused when these witnesses, in the course of the incident that day, attempted to snatch the knife from the hand of the appellant. Bearing in mind the nature of the medical evidence as to the knife injuries on Abdul Ghafoor, we are not inclined to accept the explanation that after he had received them and fallen down, he would have been in a condition to get up, pick up a lath , and strike the appellant with it. In our view, this injury was inflicted on Abdul Ghafoor after he had struck the appellant with a lath, and while Abdul Ghafoor with several others, was attempting to secure the appellant.
19. The plea of self‑defence, in our view, is without substance. We are convinced that this is not a case in which the injuries on Abdul Aziz, the deceased, were inflicted in self defence, for quite clearly, Abdul Aziz was stabbed, a little before the appellant was finally secured. There is no evidence of any consequence, that the crowd which must have collected at the time quite naturally under the circumstances considering that this incident took place in a very busy part of Hyderabad Bazar, made a mass attack upon the appellant. We, therefore, give no weight to this aspect of the defence.
20. We now come to the question of mitigating circum stances urged, on the aspect of the proper sentence to be imposed on the appellant. In fairness to the appellant, there are certain acts which have been pointed out to us in the course of the evidence, which appear to us strange and peculiar.
Firstly, the aspect is that the appellant is a Hindu cooly. There is no question of premeditation in this case. The knife which was unfortunately a very formidable weapon, was picked up by the appellant on the spur of the moment. P. W. Noor Muhammad has not stated in his evidence that the appellant had demanded the return of his money because the melon given to him was not sweet. Strangely enough, appellant slapped Noor Muhammad and acted even more strangely by going behind him and picking up the knife from Noor Muhammad's handcart, and asserting that his name was Chandoo. Thereafter, he mounted Saifuddin's shop and broke the glass panes of the show‑case. This is an extremely strange course of conduct which has not been explained by the prosecution. He then demanded a sum of Rs. 11 lacs from Saifuddin with whom he had no concern, and did not even know him. Thereafter, he was dealt a blow by Abdul Ghafoor, and when finally secured, as indicated in the Mashirnama, Exh. 5‑B, prepared at the Police Station imme diately following the incident, he not only had an injury on his forehead, above the left eye, but was completely naked. The further circumstance is that P. W. Hassan Ali in his cross -examination has admitted that the appellant was behaving strangely when he was seized ; he was pulling his loin cloth up and down and releasing it a number of time when replying.
21. Taking all the acts and circumstances into account, it does appear that the appellant was suffering from some sort of mental abnormality at the time of the incident. No satisfactory explanation has been given to us as to why the appellant should behave in such a strange manner, shouting out his name, breaking the glass panes of the show case of Saifuddin's shop, and of demanding Rs. Ii lacs from him. He may have suddenly lost control over himself at the time, and then realizing that he was a Hindu, suddenly lost his nerve, and ran amok in a state of what can be best described as being "at bay."
22. In the case of State v. Balahari Das the appellant was a Hindu, who was charged with the revolting crime of having cut off the head of a Muslim boy on the Shiva Puja' night. The crime has been described as diabolical and atrocious, and the motive of the appellant there appeared to be that he had chopped off the head of the boy to offer it in Shiva Puja on the night following. In that case, the appellant had not only cut off the head, but had hidden it in an earthen pot. Although the crime was atrocious and revolting to civilisation, their Lordships considered that in view of the peculiar facts of the case, the ends of justice would be met if they reduced the sentence of the prisoner from death to one of transportation for life. Considera tion was also given to the additional factor that the appellant there had been pursued by a crowd who inflicted several injuries on him.
23. In the present case also, for reasons we have already given, we are satisfied that the conduct of the appellant was abnormal, and does indicate his mental imbalance at the time of the murder, which was not premeditated. In our view, therefore, the ends of justice will be served if the sentence is reduced to transportation for life. While therefore dismissing the appeal of the appellant and confirming his conviction under section 302, P. P. C., we would reduce the sentence of death to one of transportation for life.
24. With this modification, the appeal is dismissed.
K. H. A.
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