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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 Gour’s 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

" In Gotipulla Venkatasiva Subbrayanam & Others v. There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned. All free. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. he would be doing so lawfully. In Bhagwan Swaroop v."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.defence. A lathi is capable of causing a simple as well as a fatal injury. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation." In light of various judgements. State of Madhya Pradesh (1992) 2 SCC 406 this court had held as under:. the apex court in the case of Darshan Singh gave the following set of principles for Private Defence. The State of Punjab court observed that in the following circumstances right of private defence can be exercised :- i.grievous hurt was likely to be caused to him by the deceased or their companions. In other words. iii. 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. (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries." In Puran Singh & Others v. (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. The State of Andhra Pradesh & Another. then if he had acted in the right of self. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. 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. democratic and civilized countries recognize the right of private defence within certain reasonable limits. . 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. More harm than necessary should not have been caused. 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. Whether in fact the injuries actually caused were simple or grievous is of no consequence. There is no sufficient time for recourse to the public authorities ii.

Here he does not know the nature of the act. Here he is incapable of knowing by reason of insanity that he is doing what is morally wrong. by reason of his insane delusion.. Emperor vs Ram Saiya. (vii) It is well settled that even if the accused does not plead self-defence. 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. the order or command of the superior officer is not justified or is otherwise unlawful. the case is overruled by Vishwanath vs State of Up where the court held that. and the cases. would arise only if. Instances of unsoundness of mind of this description would be such as these : A person strikes another. So. all that Section 100 requires is that.State of WB vs Shew Mangal Singh. have been left outside the exception. Or he may kill a child under an insane delusion that he is saving him from sin and sending him to heaven.Mere abduction is not a crime. 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. because it has been thought that . But later. – Queen Empress vs Nader Sayer Shah It may be that our law. in which insanity affects only the emotions and the will. it is not a crime unless it is done with intention to do any other act. he is incapable of knowing that he is doing what is contrary to the law of the land. impulses.(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. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. to the extent relevant in this case. subjecting the offender to. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. whilst it' leaves the cognitive faculties unimpaired. and in consequence of an insane delusion thinks he is breaking a jar. That is the purport of the illustration to section 76. like the law of England. Or he may under insane delusion believe an innocent man whom he kills to be a man that was going to take his life. limits non-liability only to those cases in which insanity affects the cognitive faculties. 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. in which case. it is open to consider such a plea if the same arises from the material on record. because it is thought that those are the cases to which the exemption rightly applies. mere abduction without any motive does not give rise to any right to private defence. there is an assault against the human body and that might also be abduction against ones will. (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.

by a perpetual infirmity. this would be to go against the plain language of Section 84 of the Indian Penal Code. v. See the cases of Queen- Empress v. 1 Hala's Pleas of the Grown 34). 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...105. Razai Mia. pp. or who do not know their fathers or mothers. (1) an idiot. (See Archbold's Criminal Pleadings. 12 Edn. There are four kinds of persons who may be said to be non compos mentis (not of sound mind). 35th Edn. the offender showed consciousness of guilt and made efforts to avoid detections whether.e. so far as we can judge from his acts and words. . "inferential insanity"." It might be said of our law as it has been said of the law of England by Sir J. Russell on Crimes and Misdemeanors. 12th Edn. Vol. Queen-Empress-. what Mayne calls. (See Russell. p. Lakshman Dagdu. or tell the days of the week. All facts of this sort are material as bearing on the test."to guard against mischievous propensities and homicidal impulses. and the received interpretation of that section. 1. whether after the crime. STEPHEN that even as it stands. These tests are not always reliable where there is. whether it was done in a manner which showed a desire to concealment . 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. are left unimpaired.. or the like.31-32. or to use the words of Lord Justice Bramwell in Beg v. (2) one made non compos by illness (3) a lunatic or a mad man and (4. without lucid intervals. 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. p. An idiot is one who is of non-sane memory from his birth. and those are said to be idiots who cannot count twenty. Mayne summarises INSANITY as follows: "Whether there was deliberation and preparation for the act. which Bramwall. Vol.the object of the criminal law is to make people control their insane as well as their sane impulses. A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes. having intervals of reason. To take such a view as. because where the will and emotions are affected by the offender being subjected to insane impulses.i. . Humphreys 10 Clark & Finnelly.Queen Empress vs Nader Sayer Shah. (See 1 Hale PC 30).Evidence and Practice. In extreme cases that may be true. it is difficult to say that his cognitive faculties are not affected. in which it is only shown that he is subject to insane impulses. he offered false excuses and made false statements.. Venkatasami and Queen-Empress v. 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. after his arrest. notwithstanding that it may appear clear that his cognitive faculties.) one who is drunk.

but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act. if there is such a restoration. However. Hale PC 31). 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. memory and judgment as to make it a legal act . At this time he was arrested for attempt to make false document under section 464. has generated a lot of controversy ever since it was laid in the case of Queen vs . Later on it was found that the documents were fake. 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. the person concerned can do the act with such reason. but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. 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. 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. State of Maharashtra: (1972 Cr. attendant and subsequent to the event. 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. but not that remote in time. 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. Lord Blackburn identified a key difference between the two. Lunacy and madness are spoken of as acquired insanity. in M Naughton's case (1843) 4 St. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder.LJ 1523 (SC)). In the case of Abhayanand Mishra vs State of Bihar AI 1961.-Sidhapal Kamla Yadav vs State of Maharashtra. He says that if the actual transaction has commenced which would have ended in the crime if not interrupted. In the case of R vs Cheesman 1862. but merely a cessation of the violent symptoms of the disorder is not sufficient. (NS) 847. In Sherall Walli Mohammed v. may be relevant in finding the mental condition of the accused at the time of the event. but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence.103. and idiocy as natural insanity. 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 rule of impossibility to find out what constitutes attempt and what constitutes preparation. It was held that it was an attempt to cheat because he had done everything towards achieving his goal. So. Madness is permanent. Mere abnormality of mind or partial delusion. Behaviour. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence. there is clearly an attempt to commit the crime. Tr. the forgery would not be complete. antecedent.

2. When a statute makes it penal to do an act under certain circumstances. When an act is in itself plainly criminal and is more severely punishable if certain circumstances coexist. 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. ignorance of the existence is no answer to a charge for the aggravated offence. However. As per J B K Sharma. the girl looked older than 18. 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. the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there. In this case. his knowledge is immaterial. AIR 1961. In this case. these cases were overruled in R vs King 1892. in the case of R vs Mc Pherson 1857. where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. She had gone with the person with consent and the person had no reason to believe that the girl was under 18. In the former case. 4. In the case of Om Prakash vs State of Punjab. 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. 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. and under certain circumstances. R vs Prince 1875. even if that act is not the penultimate act. it was held that by taking a girl without her guardian's permission. the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location. Similarly. number. When an act in itself is wrong. 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. The law made taking a woman under 18 from her guardian without her guardian's permission a crime. the person had no intention to abduct her. the ignorance of such circumstances is an answer to the charge. criminal. 5. When an act is prima facie innocent and proper unless certain circumstances co-exist. and type of injury.Collins. Further. is an important case where a person was convicted of abducting a girl under 18 yrs of age. 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. . The above guidelines were brought in Indian law in the case of The King vs Tustipada Mandal AIR 1951 by Orissa HC. 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. However.

the appellant. He thought that there was a miscreant. her husband came back and since 7 years had not elapsed since his disappearance. the husband with limited literacy asked his lawyers about his divorce. other people in town truly believed that the husband died in a shipwreck. was evolved in R vs Arnold 1724. After some years. Here.In R vs Tolson 1889. 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. she married another person. The husband construed as the divorce was done and on that belief he married another woman. an armed constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam site in dusk hours. It was held that disappearance for 7 yrs is only one way to reach a belief that a person is dead. in R vs White and R vs Stock 1921. However. This test of Wild Beast Test. which are required to legally presume a person dead. this was a mistake of fact and so she was acquitted. though he committed the greatest offence. In Queen vs Lukhini Agradanini 1874 . and as the evidence showed." . In Bhupendra Singh Chudasama vs State of Gujarat 1998. J Tracy laid the test as follows. It was held that it was a mistake of law. "If he was under the visitation of God and could not distinguish between good and evil and did not know what he did. In English law. was held guilty in the absence of any evidence leading to boy's feeble understanding of his actions. when the husband did not turn up. 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. yet he could not be guilty of any offence against any law whatsoever. The appellant took the plea that it was dark at that time and he saw someone moving near the dam with fire. a person was convicted of bigamy. a boy of 12 years of age was convicted of raping a girl. However. By evidence. it was clear that the person was mentally deranged. the boy who participated in a concerted action and used a sharp weapon for a murderous attack. 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. where the accused was fighting with a man and the man's pregnant wife intervened. the accused was tried for wounding and attempting to kill Lord Onslow. she was charged with bigamy. The accused aimed at the woman but accidently hit the baby who was killed. However. who replied that they will send the papers in a couple of days. in Hiralal vs State of Bihar 1977. He shouted to stop the person but upon getting no response he fired the shot. He was not allowed protection under this section because he was not doing a lawful act in a lawful manner by lawful means. a woman's husband was believed to be dead since the ship he was traveling in had sunk. If the woman. Here. In Jogeshshwar vs Emperor.

For example. He was acquitted on the ground of insane delusion. 4. Director of Public Prosecution vs Beard 1920 was an important case in case of intoxication. he was held guilty. if the accused. under delusion that a person is about to kill him and attacks and kills the person in self defence. She resisted and so he put a hand on her mouth to prevent her from screaming thereby killing her unintentionally. That is. 2. 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. at the time of the act. he knew that he was acting contrary to law. 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. If the accused suffers with partial delusion. These questions and answers are knows as M'Naghten's Rules which form the basis of the modern law on insanity. 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. However. 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. House of lords convicted him for murder and the following principles were laid down - . In this case. Thus. 5. he was punishable. Every man must be presumed to be sane until contrary is proven. under delusion that a person has attacked his reputation. as if the facts with respect to which the delusion exists were real. a 13 yr old girl was passing by a mill area in the evening. where Hadfield was charged with high treason and attempting the assassination of King George III. If the accused was conscious that the act was one that he ought not to do and if that act was contrary to law. 3. The following principals were evolved in this case - 1. He pleaded insanity. A watchman who was drunk saw her and attempted to rape her. he must be considered in the same situation as to the responsibility. the accused was charged for murder of one and grievous assault on other two. Danial M'Naghten was tried for the murder of a private secretary of the then prime minister of England. he is punishable according to the nature of the crime if. and kills the person due to revenge. Regardless of the fact that the accused was under insane delusion. S K Nair vs State of Punjab 1997. But if the accused. Here. He was acquitted on the ground of insanity. he will be punishable. 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.This test of Insane Delusion was evolved in Hadfield's Case in 1800. he will be exempted from punishment. to establish defence on the ground of insanity.

a team organized by the municipal corporation was trying to round up stray cattle and was attacked by the accused. The difference between being drunk and diseases to which drunkenness leads is another. the accused received information that they were going to get attacked by some sections of the village. the driver of a truck drove over and killed two persons sleeping on the road in the night. Upon attack. 3. 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. however. 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. Ajodha Prasad vs State of UP 1924. SC held that although in many cases people have dealt with the errant drivers very seriously. . Insanity whether produced by drunkenness or otherwise is a defence to the crime charged. There is no right of private defence against an act which is not in itself an offence under this code. In Ram Rattan vs State of UP 1977. 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. In Kanwar Singh's case 1965. However. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law. It was held that they did not exceed the right of private defence. 2. Sheo Persan Singh vs State of UP 1979. 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. 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. People ahead of the truck stood in the middle of the road to stop the truck. 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 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. The former is no excuse but the later is a valid defence if it causes insanity. 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. 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.1. they defended themselves and one of the attackers was killed. but that does not give him the right of private defence to kill multiple people.

State of Punjab. Here. Delhi Administration. 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. State of Gujarat v. 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. State of V.P. Subramani And Anr vs State Of Tamil Nadu. v. the right does not extend to the inflicting of more harm than is necessary for defence. 5. a member of the crowd. 6. U. The right of self-defence is a very valuable right. Mohinder Pal Jolly v. belonging to other community.2. 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. Thus. . . 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. It is a defensive and not a punitive or retributive right. 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. serving a social purpose and should not be construed narrowly. The crowd started beating the doors of A with lathis.Munshi Ram and Ors. AIR.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. Amjad Khan vs State AIR 1952 In this case. 3. In case of State of UP vs Shiv Murat 1982. Mohd. State of M. 4. 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 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. v. 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. A crowd of one community surrounded the shop of A. Musheer Khan. a criminal riot broke out in the city. and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. A then fired a shot which killed B. Bai Fatima. Vidhya Singh v.

every person. Under Section 84 IPC. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence which may be oral. in the sense laid down by S. in IPC. 6. 4. Cause of ailment not known hereditary plays a part. a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he.The appellant used to set fire to his own clothes and house. 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.Their Lordships of the Apex Court in the decision in BAPU'S CASE (cited supra) considered the scope of Section 84 I.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. The appellant has a family history _ his father was suffering from psychiatric illness. STATE OF MAHARASHTRA- 1. he had to be taken for treatment of ailment 25 times to hospital.P. who is mentally diseased. 1994. mainly treated this expression as equivalent to insanity. and this could hardly be called irrational. RATAN LAL V. BAPU ALIAS GUJRAJ SINGH V.insanity&quot. but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. 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. documentary or circumstantial. 5. THE STATE OF MADHYA PRADESH . 2.(2) There is a rebuttable presumption that the accused was not insane. Appellant was being treated for unsoundness of mind since 1992 Diagnosed as suffering from paranoid schizophrenia. or (b) that he is . is not ipso facto exempted from criminal responsibility. A court is concerned with legal insanity. The weak motive of killing of wife being that she was opposing the idea of the appellant resigning the job of a Police Constable. soon after the incident from 27th June to 5th December. however. Killing in day light no attempt to hide or run away. The courts have. it is more like verging on insanity.unsoundness of mind&quot. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence. is either incapable of knowing (a) the nature of the act. But the term &quot. It is a term used to describe varying degrees of mental disorder. There is no definition of &quot. Appellant was under regular treatment for the mental ailment. itself has no precise definition. 3. when he committed the crime. SHRIKANT ANANDRAO BHOSALE V. STATE OF RAJASTHAN . 7. at the time of doing the act. and not with medical insanity. A distinction is to be made between legal insanity and medical insanity. So. Within a short span.

Behaviour. it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. Stephen in History of the Criminal Law of England. although he might know the nature of the act itself. howsoever atrocious it may be.. or that even if he did not know it. bring the case within this section. 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. however. . Para 12. but not that remote in time. even if he did not know that it was contrary to law. is the material time when the offence takes place. cannot in the absence of plea and proof of legal insanity. Every person is presumed to know the natural consequences of his act.. But where during the investigation previous history of insanity is revealed. Mere abnormality of mind or partial delusion. however. The prosecution has not to establish these facts.. not protected if he knew that what he was doing was wrong.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. The onus of proving unsoundness of mind is on the accused. 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..doing what is either wrong or contrary to law. Mere absence of motive for a crime. as not to know the nature and quality of the act he was doing. in M'Naughton's case ((1843) 4 St Tr NS 847 (HL)). it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. attendant and subsequent to the event. It is difficult to prove the precise state of the offender's mind at the time of the . The crucial point of time for deciding whether the benefit of this section should be given or not. he must always be presumed to intend the consequence of the action he takes. and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong... 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.. 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. 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. may be relevant in finding the mental condition of the accused at the time of the event. would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The section itself provides that the benefit is available only after it is proved that at the time of committing the act.. He is. In coming to that conclusion. the accused was labouring under such a defect of reason. from disease of the mind. he was incapable of knowing the nature of the act. it was either wrong or contrary to law then this section must be applied. on account of insanity. the relevant circumstances are to be taken into consideration. antecedent.. but also when he did not know either that the act was wrong or that it was contrary to law. The accused is protected not only when. 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. also by evidence of his mental condition and other relevant factors. Similarly every person is also presumed to know the law. The onus. Vol. p. II..

Para 13. The accused is protected not only when. he was incapable of knowing the nature of the act. The onus of proving unsoundness of mind is on the accused. the act was right or wrong. The standard to be applied is whether according to the ordinary standard. not protected if he knew that what he was doing was wrong. he must always be presumed to intend the consequence of the action he takes. but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act. or that he was liable to recurring fits of insanity at short intervals. cannot be sufficient to attract the application of this section. or that his behaviour was queer. but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence." . memory and judgment as to make it a legal act. or that he had committed certain unusual acts in the past. or that he had committed certain unusual acts in the past. odd. if there is such a restoration. State of Rajasthan. Mere absence of motive for a crime. adopted by reasonable men. in which it has been held as follows: “The standard to be applied is whether according to the ordinary standard. So. cannot in the absence of plea and proof of legal insanity. The mere fact that an accused is conceited. or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour. Justice Pasayat 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.” Further. even if he did not know that it was contrary to law. however. or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will. but also when he did not know either that the act was wrong or that it was contrary to law. irascible and his brain is not quite all right. although he might know the nature of the act itself.commission of the offence. and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. or that he was liable to recurring fits of insanity at short intervals." The Bench said. while delivering the judgement. adopted by reasonable men. cannot be sufficient to attract the application of this section. Bapu alias Gujraj Singh v. who is mentally diseased is not ipso factoexempted from criminal liability. irascible and his brain is not quite all right. the act was right or wrong. "Every person. but merely a cessation of the violent symptoms of the disorder is not sufficient. or that his behaviour was queer. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder. A distinction is to be made between legal insanity and medical insanity. He is. the person concerned can do the act with such reason. on account of insanity. howsoever atrocious it may be. bring the case within this section. or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour. odd. or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will. The mere fact that an accused is conceited.

State of Madhya Pradesh. in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. 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.N. Lakshmaiah v.” And it further said. v. it was held that. in which it has been held as follows: “Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind.Hari Singh Gond v. 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. “In our opinion. State of Karnataka” In State of M. The mere fact that the accused is conceited. odd. The courts have. however. “The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence. . But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. the court in Surendranath Mishra vs state of Jharkhand opined that. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. every person.P. 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. There is no definition of ‘unsoundness of mind’ in IPC. Section 84 of the Indian Penal Code will not come to its rescue. and not with medical insanity.” “In order to ascertain that. 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. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity. irascible and his brain is not quite all right. It is a term used to describe varying degrees of mental disorder. he knew the consequences of the act done by him. mainly treated this expression as equivalent to insanity. Expression “unsoundness of mind” has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. Ahmadull. is not ipso facto exempted from criminal responsibility.” “Even if the accused establishes unsoundness of mind. But the term ‘insanity’ itself has no precise definition.” Relying on the above 2. it is imperative to take into consideration the circumstances and the behaviour preceding. attending and following the crime. 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. who is mentally diseased. Reference in this connection can be made to a decision of this Court in the case of T. So.

I am bound to tell you that the adequacy of that motive is of little importance. Such impelling cause need not necessarily be proportionally grave to do grave crimes. and to drive off for a time pressing difficulties. it was observed by the Apex court while dealing with the motive and prof that. Palmer thus: “But if there be any motive which can be assigned. Motive is the emotion which impels a man to do a particular act. Mere abnormality of mind or partial delusion. inferences from circumstances may help in discerning the mental propensity of the person concerned. howsoever atrocious in may be. Though. In some cases. 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. not merely from malice and revenge. from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives.” Lord Chief Justice Champbell struck a note of caution in R. In Sidheswari Bora v. bring the case within this section The Supreme Court in Sherall walli Mohammed v. The State of Assam. In the case of Nathuni Yadav and others v. 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. State of Bihar and another it was laid down that. IPC. 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.P. it is a sound proposition that every criminal act is done with a motive. v. Motive for doing a criminal act is generally a difficult area for prosecution. culpable homicide not amounting to murder). After all. : - “17.” Mere absence of motive for a crime. while in some other cases. it may not be difficult to establish motive through direct evidence.. cannot in the absence of plea and proof of legal insanity. it is unsound to suggest that no such criminal act can be presumed unless motive is proved. but to gain a small pecuniary advantage. . motive is a psychological phenomenon. 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. 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. It is quite possible that the aforesaid impelling factor would remain undiscoverable. e. 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.In the case of Sooguru Subrahmanyam Vs State of A. One cannot normally see into the mind of another. Many a murders have been committed without any known or prominent motive. We know.

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 Court has had further evidence. however. the physical nature and quality as distinguished from the moral-or.. (3) insanity after conviction.. antecedent. the insanity that is material in determining responsibility for a wrong committed. Mohinder Singh. But to establish that is only one step. State of Punjab v.In Ajaya Mahakud vs State it was decided that. 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. Ramkumar have been corroborated by each other. it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders. determined by the time when the insanity was shown to exist: (1) insanity at the time of the doing of the wrong. but the first.' (2) insanity at the time of trial..J. " The insanity (in the sense of whole class of mental ailments. in the sense of mental disorder) of a defendant may have to be considered by the court in three different connections. observed : " The crux of the whole question is whether this man was suffering from epilepsy at the time he committed the crime. of his having had attacks of epilepsy. The third is of importance in affixing the punishment. that he has suffered from epileptic fits. but not that remote in time. C. Hence. Harbans Lal and Dr. the second determines whether the defendant can be tried." Reading. if he does know the nature and quality of the act he is committing.. Behaviour. and there are statements made by the prisoner himself. "Mental Diseases. and the first only. 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. " 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.. attendant and subsequent to the event." . and that has not been proved. 'I once had an epileptic fit. may be relevant in finding the mental condition of the accused at the time of the event. The detailed reasons given by both Dr. and everything that happens hereafter must be put down to that'. It cannot be said that the finding of the High Court was wrong. Otherwise it would be a most dangerous doctrine if a man could say. especially in the prison records. In view of these circumstances we are not in a position to take a different view particularly when the appellant was suffering from schizophrenia.Clouston.. i. that he does not know that he is doing wrong.. e. has to do with the question of the defendant's guilt. There is.. evidence of a medical character before the jury. is that which existed at the time the wrong was done.

State of Punjab2. minor girls with physical disability.P. The probability that the accused persons could be reformed and rehabilitated is also a factor to be borne in mind. and not Judge centric. Investigation In Pala Singh and Another v. examples are only illustrative and not exhaustive. due to constitutional compulsion. reflected by the will of the people. . that is whether the society will approve the awarding of death sentence to certain types of crime or not. especially intellectually challenged minor girls. extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls. old and infirm women with those disabilities etc. Courts award death sentence. To award death sentence. While applying this test. which depends on the perception of the society and not judge-centric. State of Bihar 3 and Aqeel Ahmad vs. Even if both the tests are satisfied as against the accused. State of U. In such circumstances we do not find any infirmity in the case of prosecution on that score. in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and prosecution insupportable. though not determinative factor in all fact situations. our earlier detailed discussion discloses that there was no dearth in that aspect. the Court has to look into variety of factor like societys abhorrence. however improper or objectionable the delay in receipt of the report by the Magistrate concerned. even then the Court has to finally apply the Rarest of Rare Cases test (R-R Test). the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. As far as the commencement of the investigation is concerned. 1 SCR 298) 4 (2008) 17 SCR 1330.Guruvail Singh @ gala Vs state of Punjab 1 AIR 1972 SC 2679 2 (AIR 1976 SC 2304) 3 (2001 Supp. because situation demands.PUNISHMENT Age definitely is a factor which cannot be ignored.4 DEATH SENTENCE. Anil Rai vs.. In fact the above decision was subsequently followed in Sarwan Singh & Others 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.

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. where his act affects the entire moral fibre of the society e. revolting and dastardly manner. has been restated and emphasized time and again in the above referred to decisions. Thus. The crime may be heinous or brutal but may not be in the category of the rarest of the rare case. State of Punjab7 . However. 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.g. Swamy Shraddananda v. Machhi Singh 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 death sentence may be warranted where the victims are innocent children and helpless women. threatening its peaceful and harmonious coexistence. executed meticulously in a diabolic manner. In order to appreciate the principle in a nutshell. It is. well-settled that awarding of life sentence is the rule. The accused may be a menace to the society and would continue to be so. death is an exception.The principle of rarest of rare case enunciated in Bachan Singh v. in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal. what is stated in Haresh Mohandas Rajput v. the death sentence may be the most appropriate punishment for such a ghastly crime. 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. death sentence should be awarded. therefore. The application of the rarest of rare case principle is dependant upon and differs from case to case. 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. State of Punjab 5. crime committed for power of political ambition or indulging in organized criminal activities. Santosh Kumar Satishbushan Bariyar 5 [1980 (2) SCC 684] 6 [2011(12) SCC 56] 7 [AIR 1983 SC 957] 8 [2008 (13) SCC 767] . State of Karnataka 8. grotesque diabolical. 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.

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. gruesome or shocking the crime may be. State of Maharashtra9. Mohd. It may seem trite to say so. State of Maharashtra v. held that.port of the sentence awarded to the convict and further ordains that in case the Judge awards the death penalty. the Court should ordinarily impose the lessor punishment and not the extreme punishment of death which should be reserved for exceptional cases only. to promote respect for the law.in sup. 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. in this case. "special reasons" for such sentence shall be stated in the judgment. acid pouring or bridge burning. to provide just punishment for the offence. to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. 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. further. Farooq Abdul Gafur v. The court.v. State of Maharashtra10. 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 . for example. Victimogenesis and the impact of the crime on the community.. 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. It serves a three-fold purpose (i) punitive (ii) deterrent and (iii) protective. 9 [2009 (6) SCC 498] 10 [2010 (14) SCC 641] 11 [AIR 2011 SC 2689] . 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. Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions. Sentences of severity are imposed to reflect the seriousness of the crime. 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. no matter how cruel. 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.

the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence.(1). Guilt once established. after culling out the guidelines laid down in Bachan Singh's case. restore his retarded human potential by holistic healing of his fevered. fatigued or frustrated inside and by repairing the repressive. and seeks to personalise the punishment so that the reformatory component is as ." "The sentence follows the conviction. 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. sometimes altogether irrelevant if not injurious at the stage of fixing the guilt." In any scientific system which turns the focus. P. in the subsequent decision of Machhi Singh v. 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. He has a right to examine himself as a witness. In. Jagmohan Singh v. “Every saint has a past and every sinner a future. State of U. diabolical and revolting as to shock the collective conscience of the community. and give evidence on the material facts. all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Law must rise with life and jurisprudence responds to humanism. it is essential that facts of a social and personal nature. State of Punjab12. the punitive dilemma begins. The reason is that relevant facts and circumstances impinging on the 'nature and circumstances of the crime are already before the court. there was an argument about the absence of procedure laid down by the law for determining whether the sentence. and it is true that no formal procedure for producing evidence with reference to the sentence is specifically provided. would it be permissible to award the death sentence.much operative as the deterrent element. never write off the man wearing the criminal attire but remove the dangerous degeneracy in him.of death or something less is appropriate in the case. at the sentencing stage. injustice of the social order which is vicariously guilty of the criminal behavior of many innocent convicts.. In important cases like murder the court always gives a chance to the accused to address the court on the question of sentence. Apart from the cross-examination of the witnesses. not only on the crime but also the criminal. thereafter. this Court. though hidden. Death Sentence on Death Sentence. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. The INDIAN ADVOCATE: JOURNAL OF THEBAR ASSOCIATION OF INDIA .Then the court observed that. 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.”13 clinching wealth of circumstances. observed that only in those exceptional cases in which the crime is so brutal.

determined. It cannot be emphasised too often that crime and punishment are functionally related to the society in which they occur. the special reasons for such sentence. it was held that. P15.R. I am bound to the law as I find it to be and not as I fervently wish it to be". No. Section 354(3) reads : "354(3) When the conviction is for an offence punishable with death or. In the new Criminal Procedure Code. 82. The first submission is based on the provisions of Article 19 of the Constitution. with imprisonment for life or imprisonment for a term of years. 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. it would not be a valid law. It is.C.1138) 15 1973 SCR (2) 541 16 [1952] S. 6. In State of Madras v. It was. . On the statutory side there has been a significant change since India became free. contended that. V. in the case of sentence of death. 14 (The Yale Law Journal.367(5) of the Criminal Procedure Code. and. Row16 it was held that. the judgment shall state the reasons for the sentence awarded. Under s. as it stood before its amendment by Act 26 of 1955. That Article does not directly deal with the freedom to live. and expression.14 In the case of Jagmohan Singh vs The State Of U. 1973 a great change has overtaken the law. It deals with 7 freedoms like freedom of speech." Justice Stanley Mosk of California uttered in a death sentence case : "As a judge. unless it was shown that the sentence 'of death for murder passed the test of reasonableness and general public interest. Vol. In India the subject of capital punishment has abortively come before Parliament earlier. therefore. in the alternative. By amendment. although our social scientists have not made any sociological or statistical study in depth yet. however. P.. and Indian conditions and stages of progress must dominate the exercise of judicial discretion in this case. this provision was deleted with the result that the court is now free to award either death sentence or life imprisonment. G. 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. but not directly with the freedom to live. unlike formerly when death was the rule and life term the exception. the latter cannot be denied by any land unless such law is reasonable and is required in general public interest. freedom to assemble peaceably and without arms etc. for recorded reasons. 597.

It is as observed in Rathan Lal. it would be inexpedient. A. the sentence can be altered by that court. considering the general terms in which offences were defined. with the hands of the judges. 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. it is totally. and that the majority of the elected representatives of the people have. 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.18 "The authors of the Code had. to fix a maximum penalty. The Committee were of opinion that. in most cases. the prevailing conditions at the time. to fix a minimum 17 Halsbury in Laws of England. D. in all the circumstances of a given case. E." In India. The policy of the law is. The exercise of this discretion is a matter of prudence and not of law. "It is important in this context to bear in mind that the test of reasonableness. C. fixed a minimum as well as a maximum punishment. as regards most crimes. no abstract standard or- 2. but appeal lies by the leave of the Court of Criminal Appeal against an sentence not fixed by law. in authorising the imposition of the restrictions. the extent and urgency of the evil sought to be remedied thereby. In evaluating such elusive factors and forming their own conception of what is reasonable. JUDGES DISCRETION we must first see England law 17. considered them to be reasonable. Minimum penalties have in some instances been prescribed by the enactment creating the offence. wherever prescribed. should all enter into the judicial verdict. which is intended only for the worst cases. should be applied to each individual statute impugned." In order to discuss about. and 1. the underlying purpose of the restrictions imposed. The disproportion of the imposition.. The nature of the right alleged to have been infringed B. "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. general pattern. Law on Crimes. Volume 10 at page 486. of reasonableness can be laid down as applicable to all cases. and if leave is given. 18 Twenty-Second Edition page 93 . in' many cases not heinous. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part. the discretion of judges is as follows. Third Edition.

punishment. or causes grievous hurt to any person. There. and the like-they had thought it right to fix a minimum punishment". "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. and the circumstances. whether aggravating or mitigating. These are the two sections where the maximum punishment is death and the minimum is imprisonment for life. the offender uses any deadly weapon. as of time. in england. varying according to the nature of the case. The reasons are explained by Ratanlal on the punitive means referred above. Under two sections namely 1. or attempts to cause death or grievous hurt to any person. These considerations naturally include a number of particulars. 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. whether it be by forcible or fraudulent means. arising from the degree of expected gratification. alternative punishments of death or imprisonment for life are to be levied. section 121---waging-war against the Government of India. a wide discretion to punish is given to the Judge.sons and things. even those cases where the maximum punishment is the death penalty. place. 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. or the facility of perpetration peculiar to the case. and they had accordingly so altered the Code as to leave the minimum punishment for all offences. section 302--murder. attempt to commit murder. the offender is armed with any deadly weapon. murder. but that sentence is not mandatory. per. But with respect to some heinous offence-such as offences against the State. Unlike these. . As regards the rest of the offences. Circumstances which are to be considered in alleviation of punishment are : 19 Jagmohan Singh vs State of Uttar Pradesh. 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. are several other sections in which death sentence could be imposed. or the consequences to the public or to individual sufferers. the imprisonment with which such offender shall be published shall not be less than seven years. and 2.19 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. under which the offence had been committed. or by aid of accomplices or in the malicious motive by which the offender was actuated. 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. except those of the gravest nature. or the special necessity which exists in particular cases for counteracting the temptation to offend.

. 2. 5. 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. if he considers it will assist him in treating with the petition. (6) submission to the menaces. provocation. (8) drunkenness. the old age of the offender. the minority of the offender. 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. President is of an executive character. 4. 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. 20 held that. 6. 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. (3) self preservation. 3. The matter lies entirely within his discretion. and he may. (7) submission to authority. (2) provocation. the condition of the offender e. (4) preservation of some near friends. 1. wife. give an oral hearing to the parties. the state of health and the sex of the delinquent. in the case of Jagmohan Singh Vs State of Uttar Pradesh. Bentham mentions the following circumstances in mitigation of punishment which should be inflicted : (1) absence of bad intention. it was held that. (9) childhood. 7. 20 1973 SCR (2) 541 . the order of a superior military officer.g. 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. 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. (5) transgression of the limit of self-defence." The court. apprentice.

C. In evaluating such elusive factors and forming their own conception of what 21 [1978] I S. wherever prescribed. in the case of in Minerva Mills Ltd. J. CJ in State of Madras v. 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 . but does not alter it qua a judgment.. 206 23 75 L. Union of India. J.C. observed: "The judicial power and the executive power over sentences are readily distinguishable. the prevailing conditions at the time. the disproportion of the imposition. 22. 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. and no abstract standard. R. 354 24 [1952] S. 21 So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it.S. 1 22 [1981] 1 S.C. . and if so. R. Should all enter into the judicial verdict. V. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment. G. should be applied to each individual statute impugned. Benz. To carry the judgment into effect is an executive function.In State of Rajasthan and Others v." It was observed by Patanjali Sastri. Bhagwati. To render judgment is a judicial function. Row 24 about constitutional validity of death sentence- : "It is important in this context to bear in mind that the test of reasonableness. whether it is limited.The Constitution has.general pattern. Further. 23 Sutherland. the extent and urgency of the evil sought to be remedied thereby. v. In U. or. therefore. It is for this Court to uphold the Constitutional values and to enforce the Constitutional limitations. 597. what are the limits and whether any action of that branch transgresses such limits. created an independent machinery for resolving these disputes and this independent Machinery is the judiciary which is vested with the power of judicial review. v. Union of India. it can certainly be decided by the Court. The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed. 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.R. of reasonableness can be laid down as applicable to all cases. Ed.

Bachan Singh vs. considered them to be reasonable. 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." 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. in all the circumstances of a given case. in authorising the imposition of the restrictions. (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'. 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. 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. Some of the principles regarding death penalty which have emerged are: (1) the age of the accused. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part.is reasonable. and provided. and that the majority of the elected representatives of the people have. State of Punjab25 25 (1980) 2 SCC 684 [para 206] . 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. (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. (iii)Life imprisonment is the rule and death sentence is an exception.

31 Death by Medical negligence The negligence of the doctor is both civil. in the case of Jacob Mathew33. section 304A. State of U. State (NCT of Delhi)27 . Further. Rajesh Kumar vs. But in the case of medical negligence.28 (4) the circumstances in which the crime has been committed Dharmendrasinh vs. it was held that. 1860 will apply. criminal law for offence under section 304A of Indian Penal Code. Mulla & Anr. As already known. State of Punjab26. the doctor was liable in civil law for paying the compensation.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 . the main ground for determination of crime is the guilty mind of the accused. 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence. vs.(2) the possibility of reform Bachan Singh v. So. criminal or both. State of Madhya Pradesh. In Dr. Only when the negligence was so gross and his act was so reckless as to endanger the life of the patient. (3) the socio-economic background of the accused. and (6) lack of criminal antecedents Gudda vs.P. Suresh Gupta’s Case 32 – Supreme Court of India. 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 guilty mind cannot be proved. 88. The relevant provisions in IPC are. section 80. State of Gujarat.

As already said.Kusum Sharma Vs Batra Hospital In the case of Brend v. may be motivated by thrill- seeking.dered. the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind. The law of negligence has to be applied according to the facts of the case. ordinary neglect. "There is a presumption that mans rea. and (iii) levissima culpa. gross neglect (ii) levis culpa. 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. Lord Goddard. either clearly or by necessary implication. an evil intention of knowledge of the wrongfulness of the act. unless a statute. Madhubala vs. (i) lata culpa.J. in other words. 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. observed in Sherras v. rules out mens rea as a constituent part of a crime. The consequences entailed in the risk may not be wanted.De Rutzen. To further simplify this concept. the doctors are only punished for gross negligence only. called optimizing violations. is an essential ingredient in every offence.” Wright J. but this hope nevertheless fails to inhibit the taking of the risk. a disregard for the possible consequences. slight neglect.. 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. C. namely. and indeed the actor may hope that they do not occur. Wood. 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. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. Certain types of violation. There is. Government of NCT of Delhi34 classified negligence by doctors into three categories. The moral culpability of recklessness is not located in a desire to cause harm." THINGS TO BE KEPT IN VIEW BEFORE DECIDING RAREST OF THE RARE 34 2005 Indlaw DEL 209 = 2005 (118) DLT 515 . These are clearly reckless. High Court of Delhi in the case of Smt.

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. (2) When the murder is committed for a motive which evinces total depravity and meanness. 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. 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. death sentence can be awarded. (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. The community may entertain such sentiment in the following circumstances : (1) When the murder is committed in an extremely brutal. revolting or dastardly manner so as to arouse intense and extreme indignation of the community. 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.blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust. 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.g. 489. (iii) Life imprisonment is the rule and death sentence is an exception. or murder is committed in the course for betrayal of the motherland. grotesque. . (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'. para 38):- (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. and provided. murder by hired assassin for money or reward or a cold. e. disbolical.

the circumstances of the case are such that death sentence is warranted. 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. community.. (3) When murder of a member of a Scheduled Caste or minority community etc. (5) When the victim of murder is an innocent child." . (4) When the crime is enormous in proportion. are committed. 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. 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. is committed not for personal reasons but in circumstances which arouse social wrath. or locality. 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. the court would proceed to do so.