Report No. 69

V. Conclusion

46.32. In this connection, it may be noted that the question is whether the presumption under the last part of section 105-an obligatory presumption-is not removed as soon as any credible evidence in support of the plea comes or the record. This question has not been dealt with by the Supreme Court. It was suggested that unless the hands of the Court are freed from the obligatory presumption, by lifting it as soon as credible evidence comes on record in support of the exception, the court would not be in a position to view the evidence as whole and give the benefit of doubt to the accused.1 "It would, in that case, act as a genuine statutory exception snapping the golden thread of Anglo-Saxon jurisprudence which we have adopted as our own.2"

The last part of section 105 provides-"The court shall presume the absence of such circumstances."

1. Compare the judgment of M.H. Beg, J., in Rishikesh Singh v. State, AIR 1970 All 51 (92)1 para. 139.

2. Rishikesh Singh v. State, AIR 1970 All 51 (92), para. 139 (M.H. Beg, J.).

46.33. It was expressly decided by M.H. Beg J., in the Allahabad case1 follows:-

"My view, therefore, is that, in cases where the accused pleads exceptions the obligatory presumption is lifted as soon as there is some evidence to support the plea.2the accused may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. The prosecution will have to remove this doubt, possibly in the course or argument, to succeed after this. In other cases, the accused may have carried his case still further and established his plea (relating to the exception), by a preponderance of probabilities.

Although, there is no provision in our Criminal procedure Code for production of evidence in rebuttal by the prosecution, as of right, after the accused has established an exception by a preponderance of probability, yet, it is conceivable that, in exceptional cases, the prosecution may be able to demolish the defence case, even "after it is fully proved, by some rebutting evidence which the Court is persuaded to admit under section 540, Criminal Procedure Code3 in exercise of the Court's power to decide the case justly after finding out the whole truth.

For example, the prosecution may be able to prove that a doctor, who had given evidence of the injuries on the accused, had undoubtedly fabricated evidence. Ultimately, these stages become parts of a single psychological process of appraisement of evidence as a whole which the judge goes through in his mind when considering sifting weighing comparing and testing the prosecution and defence versions and evidence placed side by side with a view to pronouncing his judgement. At this stage, the obligatory presumption under section 105 cannot stand in the way of an acquittal it evidence in the case justifies giving the accused the benefit of reasonable doubt on the charge."

1. Rishikesh Singh v. State, AIR 1970 All 51 (96), para. 154.

2. Emphasis added.

3. See now section 311, Cr. P.C. 1973.

46.34. Recommendation as to insanity.-

It was suggested to us that while the general provision in section 105 need not be disturbed, there is scope for reform of the law in relation to the quantum of proof for insanity. It was stated that it would be more in consonance with modern thinking (as is shown by the above discussion), in relation to the defence of insanity, if section 105 is modified as to replace the present provision, which throws the persuasive burden or onus of proof on the accused,1 by a provision which will place only the evidentiary burden on the accused. This would be more in consonance with justice, because in most cases, some evidence of insanity would displace the mens rea requisite for the offence2 in respect of which the defence is usually raised.

1. See Two kinds of burden, supra.

2. Usually, homicide and its species.

46.35. The suggestion was that the following proviso should be inserted below section 105:

"Provided that where the existence of circumstances bringing the case within section 84 of the Indian Penal Code is in issue, it shall be sufficient for rebutting the presumption and discharging the burden laid down in this section if there is evidence of any fact creating a reasonable doubt about the sanitary1 of the accused."

1. The word 'sanity' could, if so desired, be replaced by more elaborate wording to be borrowed from section 84.

46.36. Procedure after acquittal.-

In this connection, it may be stated that the fact that a person is acquitted on the ground of insanity does not mean that he will be set free. There are detailed provisions in the Code of Criminal Procedure1 for the treatment of a person acquitted by a criminal court on the ground of insanity. The gist of these provisions is that the person acquitted is to be detained in a place approved by the State Government or, if the court so orders, to be placed in the custody of a relative or friend. The acquitted person is not "punished"; but he is properly safeguarded. Thus, a liberalisation of the law relating to burden of proof in relation to insanity would not cause any danger. We have, however, decided to leave the section as it is, as some of us have an apprehension that this relaxation may affect the operation of section 105 in the case of other defences.

1. Sections 334-335, Code of Criminal Procedure, 1973.

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