Sikkim High Court
State Of Sikkim vs Rupesh Manger (Thapa) on 24 August, 2022
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 24th August, 2022
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DIVISION BENCH : THE HON‟BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON‟BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl.A. No.08 of 2020
Appellant : State of Sikkim
versus
Respondent : Rupesh Manger (Thapa)
Appeal under Section 378(3) of
the Code of Criminal Procedure, 1973
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Appearance
Dr. (Mrs.) Doma T. Bhutia, Public Prosecutor with Mr. S. K.
Chettri, Additional Public Prosecutor for the State-Appellant.
Mr. N. Rai, Senior Advocate (Legal Aid) with Mr. Sushant Subba,
Advocate (Legal Aid) for the Respondent-Accused.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Respondent/Accused was acquitted of the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter, the ―IPC‖), vide the assailed Judgment, dated 30-10-2018, in Sessions Trial Case No.01 of 2017, the Learned Trial Court having concluded that the Respondent was entitled to the benefit of Section 84 IPC.
2. Briefly narrated, the facts of the case are that; P.W.1 Reeta Rai, the daughter of the deceased, lodged Exhibit 1, the FIR, on 16-10-2016, informing the Rongli Police Station, East Sikkim, that the 81 year old deceased, her father who was living with her, had been attacked by the Respondent (her nephew and grandson of the deceased), who had arrived the previous day along with the deceased to stay with her, with a sharp aged weapon (patang) and murdered him. Exhibit 1 was duly registered under Section 302 of Crl.A. No.08 of 2020 2 State of Sikkim vs. Rupesh Manger (Thapa) the IPC against the Respondent, aged 25 years. P.W.16 took up the investigation, on completion of which Charge-Sheet was submitted against the Respondent under Section 302 of the IPC. On 07-10- 2017, the Learned Trial Court framed Charge against the Appellant under Section 302 to which the Respondent entered a plea of ―not guilty‖ and claimed trial. The Prosecution examined seventeen witnesses in a bid to prove its case beyond a reasonable doubt. 3(i). Pausing here momentarily, it may relevantly be noticed that the records of the Learned Trial Court reveal that the Respondent was taken into judicial custody on 17-10-2016 from where he was produced periodically before the Learned Trial Court, as per Law. On 10-04-2017, approximately six months from the time that the Respondent had been incarcerated the Learned Senior Counsel made a submission that the Respondent had earlier been diagnosed with some psychiatric disorders and therefore, may not be of sound mind to make his defence. While considering the submissions, the Learned Trial Court observed that on general examination by the Court the Respondent appeared normal but in view of his medical history referred him to the Psychiatrist at the STNM (Government) Hospital. Having examined and treated the Respondent, the concerned Consultant Neuro-Psychiatrist, Dr. Netra Thapa appeared before the Court on 04-05-2017 and was examined as Court Witness (C.W.1). Based on the medical history of the Respondent and his preliminary examination he opined that the Respondent was suffering from major depressive disorder with psychotic features and he required at least two months' time to properly examine and evaluate the Respondent's mental condition. The Learned Trial Court on the same date ordered the Crl.A. No.08 of 2020 3 State of Sikkim vs. Rupesh Manger (Thapa) Respondent's admission to the Psychiatric Unit of the STNM Hospital for two months under the care and treatment of C.W.1, who was directed to examine and evaluate his condition and to submit his Report before the Court by 15-07-2017. On 11-09- 2017, C.W.1 was once again examined by the Learned Trial Court pursuant to which the Court inter alia recorded that from the statement of C.W.1 it was noted that the Respondent showed no symptoms of depressive or psychiatric disorder while he was in the Hospital and that there had been considerable improvement in his condition. That, he would thus be aware of the consequences of his acts and was capable of making his defence in the Court.
(ii) The evidence of the Prosecution Witnesses resultantly commenced from 06-11-2017 on closure of which the Respondent was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the ―Cr.P.C.‖). He claimed inter alia his inability to recall anything about the incident and that he had been falsely implicated in the case. He sought to examine two witnesses in his defence, but opted to drop one on the ground that the said witness was repetitive. His mother Gita Manger was thus examined as D.W.1. Thereafter, the final arguments of the parties were heard and on consideration of the entire evidence on record the Learned Trial Court acquitted the Respondent, with the order that the Respondent be detained in the Psychiatric Ward of the STNM Hospital in accordance with the Rules, if any, framed by the State Government under the Indian Lunacy Act, 1912, for his further treatment and observation.
4. Learned Public Prosecutor for the State-Appellant initiated her arguments before this Court by assailing the Judgment Crl.A. No.08 of 2020 4 State of Sikkim vs. Rupesh Manger (Thapa) and contending that ―legal insanity‖ which is to be distinguished from ―medical insanity‖, has not been established by the Respondent nor was the mental status of the Respondent at the time of commission of the offence or immediately preceding and immediately subsequent to the incident evaluated, which the Learned Trial Court failed to appreciate. It was next canvassed that the Respondent was not entitled to the benefit of Section 84 of the IPC as it emerges with clarity from the evidence of P.W.1 that the Respondent consciously attacked the deceased on his neck, a vital part, which could lead to his certain death and not on any other body part. The act was intentionally committed when the deceased and the Respondent were alone in the house and the other occupant was attending to her household chores. That, these circumstances reveal the soundness of the Respondent's mind and that of the act being a premeditated one. That, although the evidence of C.W.1 pertains to the mental status of the Respondent when he examined the Respondent as detailed in Exhibit ‗A' and ‗C', but it did not pertain to his mental status at the time of commission of the offence and the evidence of the Prosecution witnesses do not indicate that the Respondent was suffering from insanity neither does his presence at the place of occurrence after the incident establish the alleged condition. Admittedly, as per Exhibit ‗D' the Respondent was on psychotropic drugs but this would not suffice to gauge his mental status at the time of the offence. That, the Learned Senior Counsel only after raised the bogey of mental illness the Respondent was incarcerated for about six months. In the interregnum no complaints were received either from the Jail inmates or the Jail Authorities regarding any untoward Crl.A. No.08 of 2020 5 State of Sikkim vs. Rupesh Manger (Thapa) behavior of the Respondent. P.W.14, the Doctor at Rongli Primary Health Centre who examined the Respondent immediately after the incident found him under the influence of psychotropic substances apart from alcohol but he was otherwise normal. That, the cross- examination of P.W.9 establishes that the Respondent expressed no remorse after the incident as he enquired from the witness about the state of his grandfather. That, the findings of the Learned Trial Court with regard to the insanity of the Respondent and his entitlement to the exception under Section 84 of the IPC is superficial lacking fortification by medical or ocular evidence. To buttress her submissions, reliance was placed on Sheralli Wali Mohammed vs. State of Maharashtra1; Hari Singh Gond vs. State of 2 Madhya Pradesh where reference was made to the ratio of Sheralli Wali Mohammed (supra); Elavarasan vs. State represented by 3 Inspector of Police and Surendra Mishra vs. State of Jharkhand4.
5. Learned Senior Counsel while supporting the impugned Judgment contended that, the Prosecution evidence on record points to the fact that, the Respondent and the deceased amicably came to the house of P.W.1, they shared cordial relations as proved by P.W.1, D.W.1 and P.W.7, they were fond of each other and there was no reason whatsoever for the Respondent to attack and kill his grandfather, other than the Respondent being encumbered by insanity. That, neither motive nor mens rea of the Respondent was proved by the Prosecution. The evidence of C.W.1 categorically revealed that the Respondent had been treated earlier for mental illness and that he suffered from such ailment. C.W.1 1 AIR 1972 SC 2443 2 (2008) 16 SCC 109 3 (2011) 7 SCC 110 4 (2011) 11 SCC 495 Crl.A. No.08 of 2020 6 State of Sikkim vs. Rupesh Manger (Thapa) had cautioned that although after treatment the Respondent showed no symptoms of depression or psychiatric disorder but the oral medication prescribed to him vide Exhibit ‗C' ought to be continued and that the ailment was relapsable. While admitting that no mental evaluation of the Respondent was conducted either immediately preceding or subsequent to the offence to assess his mental condition, Learned Senior Counsel urged that the evidence of P.W.14 reveals that ‗lorazepam' prescribed to the Respondent was a psychotropic substance, establishing that even at the time of the offence he was on medication and had committed the offence in a state of mental imbalance. That, his mother, D.W.1, had deposed that in 2015 he had an episode of mental illness in Dehradun where he was pursuing further studies and had to be brought home on that account. Her evidence is fortified by that of P.W.2 and P.W.7. That, thereafter he was under the treatment of Psychiatrist Dr. I. L. Sharma, who had advised him to be on continuous medication for his mental condition. That, apart from the Respondent being a teetotaler, he was also never involved in substance abuse. The I.O. in his evidence has admitted that at the time of the offence he did not forward the Respondent to any Hospital or laboratory to consider whether the Respondent was under the influence of any substance or alcohol. P.W.4 found the Respondent apparently normal after the incident which could only be an act of an insane person after committing such a heinous offence, which is bolstered by the fact that he did not attempt to escape from the place. P.W.1 who snatched the weapon of offence from the Respondent, witnessed him attempting to take out the ―wind pipe‖ from her father's cut neck after he was divested of the Crl.A. No.08 of 2020 7 State of Sikkim vs. Rupesh Manger (Thapa) weapon, thereby revealing unsoundness of mind. It was urged that the evidence of P.W.13 underscores the fact that the Respondent had committed the offence being oblivious of his act or its consequences and Exhibits ‗A', ‗C' and ‗D' lend credence to his mental condition, hence the finding of the Learned Trial Court being sound, requires no interference and the Appeal deserves a dismissal. Learned Senior Counsel sought to buttress his submissions with the ratiocination in Unniri Kannan vs. State5; Mst. Shanti Devi vs. The State6; Shrikant Anandrao Bhosale vs. State of 7 Maharashtra ; Siddhapal Kamala Yadav vs. State of Maharashtra8; Surendra Mishra (supra) and State of Rajasthan vs. Shera Ram alias 9 Vishnu Dutta and closed his arguments with the plea that the Respondent is now rehabilitated in society and leading a normal life, which this Court may take into consideration.
6. After carefully considering the submissions made at length before us and having meticulously perused the evidence on record, the only question that falls for consideration before this Court is; Whether the Learned Trial Court correctly acquitted the Respondent of the offence under Section 302 of the IPC by extending him the benefit of Section 84 IPC?
7(i). It is apposite in this context to discuss the provisions of Section 84 of the IPC, which are self-explanatory and are extracted hereinbelow;
"84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."5
AIR 1960 Ker 24 6 AIR 1968 Del 177 7 (2002) 7 SCC 748 8 AIR 2009 SC 97 9 (2012) 1 SCC 602 Crl.A. No.08 of 2020 8 State of Sikkim vs. Rupesh Manger (Thapa)
(ii) Along with Section 84 of the IPC, it is necessary to consider Section 105 of the Indian Evidence Act, 1872 (hereinafter, the ―Evidence Act‖) which reads as follows;
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
Illustration (a) reads as follows;
"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A."
Thus, the burden of proving unsoundness of mind rests with the Respondent and not with the Prosecution with the caveat that the Prosecution has in the first instance to establish its case beyond reasonable doubt.
8(i). In Mst. Shanti Devi (supra) the Learned Trial Court therein found the Appellant guilty of her child's murder and sentenced her to rigorous imprisonment for life on her failure to establish the plea of insanity. The only plea before the High Court was that the Appellant was insane at the time when she killed the child so as to entitle her to the benefit of Section 84 of the IPC. The evidence on record revealed abnormal behaviour of the Appellant added to the fact that she had been hospitalized for mental illness and diagnosed with manic depressive disorder. Four doctors who had treated her deposed that she was suffering from insanity. Thus, the High Court found her entitled to the benefit of Section 84 IPC.
Crl.A. No.08 of 2020 9
State of Sikkim vs. Rupesh Manger (Thapa)
(ii) In Siddhapal Kamala Yadav (supra) the Supreme Court examined the provisions of Section 84 of the IPC, but was not inclined to extend the benefit of the provision to the Appellant for the reason that the Doctor who examined the Appellant indicated that the Appellant was normal and in the medical records it had been clearly stated that he was not cooperative and it was difficult to establish any rapport with him. In Shrikant Anandrao Bhosale (supra) the benefit of Section 84 was not extended by the Hon'ble Supreme Court for the reason that the Appellant failed to prove the circumstance as required by Section 105 of the Evidence Act.
(iii) In Surendra Mishra (supra) the Supreme Court was considering whether the Appellant who sought exoneration from liability of an act under Section 84 of the IPC is to prove legal insanity and not medical insanity. It was opined that an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove ―legal insanity‖ and not ―medical insanity‖. That, the expression ―unsoundness of mind‖ has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. The term ‗insanity' carried different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. It was also further observed that mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or Crl.A. No.08 of 2020 10 State of Sikkim vs. Rupesh Manger (Thapa) the behaviour is queer, is not sufficient to attract the application of Section 84 of the IPC.
(iv) The Supreme Court observed in Shera Ram (supra) that from the principles stated in Surendra Mishra (supra) it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiently, which takes within its ambit hallucinations, dementia, loss of memory and self-control at all relevant times, by way of appropriate documentary and oral evidence, the person concerned would be entitled to take resort to the general exceptions from criminal liability. The benefit of Section 84 of the IPC was extended to him and the Judgment of the High Court upheld on grounds that evidence showed continuous mental illness of the Respondent who had not only caused the death of the deceased but on the same day also injured and caused hurt to his family members.
9. It must be borne in mind that Section 328 of the Cr.P.C. enjoins certain responsibilities on the Magistrate holding the inquiry, the provisions of the Section read as hereinbelow;
"328. Procedure in case of accused being lunatic.--(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such Crl.A. No.08 of 2020 11 State of Sikkim vs. Rupesh Manger (Thapa) surgeon or other officer as a witness and shall reduce the examination to writing.
(1A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation:
Provided that if the accused is aggrieved by the information given by the psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college;
(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.
(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, If he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under Section 330:
Provided that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330.
(4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental retardation, ............................."
10(i). In light of the above extracted provisions of law, when we examine the records of the case before us it appears that the Respondent was committed to judicial custody on 17-10-2016. P.W.16, SI Shekhar Khatiwara, the I.O. of the case under cross- examination admitted that he did not forward the accused to a Crl.A. No.08 of 2020 12 State of Sikkim vs. Rupesh Manger (Thapa) Psychiatrist for his mental evaluation. He repelled the suggestion that he had been informed by the Respondents' family members that he had returned from college due to unsoundness of mind. He denied the suggestion that the Respondent was suffering from mental illness at the time of offence. P.W.1 the Complainant/Aunt of the Respondent has also not shed any light on the mental illness of the Respondent, although admittedly her sister (D.W.1), had told her that the Respondent had been brought back home from Dehradun due to some sickness but she was unaware that it was mental illness. P.W.2, the cousin of the Respondent, was the only witness who knew of his condition, but gave no evidence of having witnessed the Respondent exhibiting abnormal behaviour at any point in time. P.W.7, resident of a neighbouring village to that of the Respondent, although cross-examined on this aspect stated that the Respondent was brought back due to illness, but he had no inkling that it was mental illness. On 13-01-2017 the Respondent was produced before the Learned Chief Judicial Magistrate, East Sikkim, at Gangtok, on which date the matter was committed to the Court of Sessions. During his incarceration from 17-10-2016 up to 10-04-2017 or even on the date of committal proceedings the Respondent made no complaint of unsoundness of mind nor were his medical papers furnished before the Magistrate to enable him/her to exercise powers under the provisions of Section 328 of the Cr.P.C. Thereafter, the Appellant was produced intermittently before the Court of Sessions as required by law, on various dates till 10-04-2017, the date on which the matter was fixed for consideration of Charge. It was only on this date that the Learned Senior Counsel for the Respondent for the first time raised Crl.A. No.08 of 2020 13 State of Sikkim vs. Rupesh Manger (Thapa) the issue of the Respondent having a history of mental illness, although noticeably, the Learned Senior Counsel had been appearing for the Respondent from 17-03-2017. The Learned Sessions Judge found the Respondent to be normal, despite which, evidently by way of abundant precaution he issued directions to evaluate the mental health of the Respondent on account of the submissions of Learned Senior Counsel on this facet, pursuant to which, the treating Psychiatrist was examined as already detailed earlier on. Learned Senior Counsel has relied heavily on the evidence of P.W.14 to establish that the Respondent was insane, the witness during cross-examination was confronted with Exhibit ‗D' a medical prescription purportedly of the Respondent and deposed as follows;
"It is true that the tablet ‗lorazepam' prescribed in serial no.3 at page 4 and also at the last page of the prescription Exhibit D is a psychotropic substance. This tablet is an anxiolytic agent. It relieves anxiety. This medicine is also used for a patient having withdrawal symptoms of alcohol. I know one Dr. I.L. Sharma who is a very senior Psychiatrist. I cannot authenticate whether Exhibit D is his prescriptions (sic). I do not know one Dr. Sanjeeva Dutta. It is true that I also worked as a Medical Officer in the CRH Tadong for about six months. .........." [emphasis supplied]
(ii) What troubles us on this aspect is that while marking the document as Exhibit ‗D' the Learned Trial Court has clearly flouted the statutory provisions laid down in Sections 61, 64, 65 and 67 of the Evidence Act pertaining to proof of documents.
Section 61 of the Evidence Act requires proof of contents of documents either by primary or by secondary evidence. Section 62 of the Evidence Act details what Primary evidence is while Section 63 deals with Secondary evidence. Section 64 requires that documents must be proved by primary evidence except in the cases mentioned in Section 65 of the same Act. Section 65 in turn Crl.A. No.08 of 2020 14 State of Sikkim vs. Rupesh Manger (Thapa) deals with cases in which secondary evidence relating to documents may be given. Section 67 is concerned with proof of signature and handwriting of person alleged to have signed or written the document produced.
(iii) In light of the above requirements of law, Exhibit ‗D' which is in photocopy in the first instance, could not have been admitted in evidence by the Learned Trial Court, the elementary rule of evidence being that mere marking of a document does not dispense with proof of its contents. It must be proved in accordance with law which mandates proof of contents and signatures by cogent evidence. The scribe of Exhibit ‗D' was not examined, the Doctors who purportedly treated the Respondent and signed on Exhibit ‗D' were not brought before the Court. The Respondent, in the proper course ought to have introduced the document through a witness who was aware of the contents or was the scribe or signatory thereof. Merely confronting P.W.14 with a document which the Court marked as Exhibit ‗D' in fact lends no credence to the contents of the document for the reasons enumerated hereinabove. That apart, the evidence of D.W.1 or any other witness does not reveal the aspect of custody of the document and from whom it was retrieved in order to establish its authenticity. Section 62 of the Evidence Act defines primary evidence as the evidence which law requires to be given first but Exhibit ‗D' is in photocopy. In this regard, Section 65 of the Evidence Act enumerates the seven exceptional cases in which secondary evidence is admissible, which are as follows;
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--Crl.A. No.08 of 2020 15
State of Sikkim vs. Rupesh Manger (Thapa)
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
..................................................................."
(iv) Law mandates that before secondary evidence is adduced a proper foundation is to be laid by way of reasons for non-production of the primary evidence. Only after the non- production of the primary evidence is satisfactorily accounted for, secondary evidence would be permitted to be adduced provided that the Court is satisfied with the reasons so furnished. It is evident from the records of the Learned Trial Court that no reasons for non-production of the original of Exhibit ‗D' were placed before the Learned Trial Court. The definition of ‗proved' given under Section 3 of the Evidence Act must be read along with Section 67 which requires that there must be specific evidence that the Crl.A. No.08 of 2020 16 State of Sikkim vs. Rupesh Manger (Thapa) signature purporting to be that of the executant is in the handwriting of the executant. It is clear from the entire records before us that the parameters laid down in the above provisions of law have remained unfulfilled and the Court has failed in its duty to be circumspect in this regard.
(v) Nevertheless, the question that now needs to be mulled over is whether despite the aforementioned shortcomings, the Prosecution ever raised an objection to Exhibit ‗D' by way of disputing the contents or the fact that it was not in original. While meticulously scrutinizing the records including the evidence and Orders of the Learned Trial Court, it is indeed clear that neither the contents nor the fact that Exhibit ‗D' was not in original was ever disputed by the Prosecution during the trial. When P.W.14 was cross-examined, despite his admission that he could not authenticate whether Exhibit ‗D' was the prescription of the concerned doctors, the Prosecution made no effort whatsoever to discount Exhibit ‗D' by recross-examining the witness. Consequently, it is clear that the Prosecution had no qualms whatsoever to the introduction of the document by the Respondent and it being marked as Exhibit ‗D'.
(vi) While considering the admissibility of documents in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. 10 Temple and Another the Supreme Court observed as follows;
"20. .......................... The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a 10 (2003) 8 SCC 752 Crl.A. No.08 of 2020 17 State of Sikkim vs. Rupesh Manger (Thapa) document has been marked as ―an exhibit‖, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence.
Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. .........." [emphasis supplied]
(vii) The Privy Council in Gopal Das and Another vs. Sri 11 Thakurji and Others held that objection as to the mode of proof must be taken when the document is tendered and before it is marked as an Exhibit. It cannot be taken in appeal.
(viii) In Lachhmi Narain Singh (D) through Lrs and Others vs. 12 Sarjug Singh (Dead) through Lrs. and Others the Supreme Court observed that given the fact that the probate applicant never raised any objection regarding the mode of proof before the Trial Court, there was no occasion for the High Court to say that it was 11 AIR 1943 PC 83 12 2021 SCC OnLine SC 606 Crl.A. No.08 of 2020 18 State of Sikkim vs. Rupesh Manger (Thapa) the duty of the Defendant to produce the original deed of cancellation. Relying on the ratio in R.V.E. Venkatachala Gounder (supra) the Supreme Court observed that the probate applicant never raised any objection in regard to the mode of proof of cancellation of Deed before the Trial Court as is evident from perusal of records and this must be held against him.
The Privy Council and the Supreme Court having laid down the Law thus, in all fairness this Court has to concede that, in the absence of any objection by the Prosecution as elucidated above, the contents of Exhibit ‗D' although introduced contrary to law, are to be considered as bearing testimony to its truth.
(ix) Exhibit ‗D', the subject of discussion hereinabove, is the Discharge Summary issued by the Department of Psychiatry, CRH (Manipal), purportedly in the name of Rupesh Rana. The document runs into seventeen pages. The ―Date of Admission‖ recorded therein is ―05-10-2015‖ while the ―Date of Discharge‖ is ―10-10- 2015‖. The case summary with relevant investigation reveals inter alia as below;
"Pt came to Psychiatry OPD with complaints of self smiling and self muttering since last 15 days. He was saying that everyone is talking against him and will harm him. Pt was admitted to Psychiatry ward and medication started to which the patient shows improvement."
The Respondent was diagnosed with ―Acute and Transient Psychotic disorder‖ and prescribed ―Tablet Olimate 10 mg, Tablet Pacitane 2 mg and Lorazepam 2 mg‖. He was directed to follow up after 10 (ten) days. He was discharged on his request against medical advice. The records indicate that during his stay at the Hospital there was some improvement in his condition. On 19-10- 2015 evidently he went for follow up treatment and it was inter alia Crl.A. No.08 of 2020 19 State of Sikkim vs. Rupesh Manger (Thapa) recorded in Exhibit ‗D' that hearing periods of voices were on and off, suspicion against a stranger was on and off, aggressive behaviour at times - but these symptoms have decreased in frequency. There was no deterioration in personal care. The prescription was repeated. There is no indication of the requirement of follow up treatment.
(x) It is essential also to peruse Exhibit ‗A' and Exhibit ‗C' prepared by C.W.1 Dr. Netra Thapa and identified by him as such. Exhibit „A‟ is dated 12-04-2017 and is extracted hereinbelow;
"PSYCHIATRIC REPORT OF RUPESH MANGER (THAPA) Accused Rupesh Manger, (Thapa), age 27 years, Male, brought from Prison, Rongyek was examined on 12/04/2017 in the presence of police personnels. (sic) The chief complaints are:
- Hearing of unusual voices (voices say him to drink blood of his friends and to kill his friend of his next bed). (sic)
- Feeling of guilt about his past instances (sic)
- Sleep disturbances
- Irritability
- Feeling of sadness
- Suicidal thoughts Duration of illness:- since one (1) month Past history:- similar two episodes-6 months & 2 years. On 05.10.2015 patient was admitted at CRH and was treated for acute and transient psychosis. Mental Status Examination:- patient is moderately built and nourished.
Patient is oriented to time, place and person. Speech:- rate, tone, volume-decreased Mood:- subjectively and objectively-depressed Perception:-auditory hallucination present Thought:-no thought disorder Judgement:- partially impaired (letter on the road, house on fire) Insight:- partially he is aware of his illness Impression:- Major Depressive Disorder with Psychotic feature.
Treatment:-
1. Tab. Oletin 10 mg 1BD
2. Cap. Flux 40 mg 1OD
3. Tab. Resgen plus 3 1HS To continue
4. Tab. Acetine 10 mg 1BD"
[emphasis supplied]
(xi) Exhibit „C‟ is dated 10-08-2015 and is extracted hereinbelow;
Crl.A. No.08 of 2020 20
State of Sikkim vs. Rupesh Manger (Thapa) "Psychiatric Report Of Rupesh Manger Date: 10/08/2017 Rupesh Manger aged 27 ys/Male from Central Prison, Rongyek, who was admitted on Hon'ble Courts order at Psychiatry ward on 05/05/2017 to 13/06/2017, again admitted on 23/06/2017 to 04/07/2017 and was examined on the date of discharge i.e, 04/07/2017.
Currently there was no any major complaint except mild feeling of guilt.
On mental Status examination.
Appearance - He was Moderately build and nourished (sic). He was kempt and dressed. There was no hallucinatory behavior. Patient was oriented to time, place and person.
Speech - Rate, tone and volume were normal and spontaneous.
Mood - Subjectively and objectively, his mood was euthymic (Normal) Perception - There was no any kind or hallucination or delusions.
Thought - There was no formal thought disorder. Intelligence - Within normal limit.
Memory - Remote, recent and immediate memories were intact.
Judgment - When asked about his future He told he would work for himself and for family and society. House on fire - When asked, what you would if you see house on fire? He told he would shout for help and do all the needful promptly.
Insight - He was fully aware of his illness. He said he would come for regular check up at Psychiatry OPD. Impression :-
Past history of 2 episodes of major depressive disorder with psychotic feature.
Currently he is free from above symptoms. He is under medication and should continue his treatment till further advise.
Presently he can defend himself in the Court."
(xii) From a careful perusal of both the documents it appears that Exhibit ‗A' details his chief complaints while Exhibit ‗C' reiterates that he had a past history of two episodes of major depressive disorder with psychotic features and that presently he was free from the said symptoms and could defend himself in the Court. All that this Court can infer from the three documents, viz., Exhibits ‗A', ‗C' and ‗D' are that the Respondent was subjected to Crl.A. No.08 of 2020 21 State of Sikkim vs. Rupesh Manger (Thapa) Psychiatric examination on 12-04-2017, 10-08-2017, 05-10-2015 and 19-10-2015 respectively. There is no assessment of his mental state immediately preceding the incident which took place on 16-10-2016 and immediately post the incident. D.W.1, the mother of the Respondent has nowhere stated that when the Respondent left home with his grandfather he was exhibiting signs of mental imbalance and her cross-examination by the Prosecutor has extracted the fact that the Respondent was normal when he left. She has not stated that he was on medication when he left his home. Evidently, there was no abnormality in his behavior whatsoever prior to the incident. P.W.1 the aunt of the Respondent noticed no abnormality in the behaviour of the Respondent when he arrived at her home with the victim, prior to the incident. The I.O. was at no stage of investigation informed by the Respondent's kith and kin about his alleged mental condition. In light of the above circumstance, we are inclined to agree with the submissions of Learned Public Prosecutor that the act was consciously committed during the time of day when the other family members were absent, it was inflicted repeatedly by a sharp weapon, on a sensitive body part as deducible from Exhibit 14, which would lead to the certain death of the victim, thereby revealing that the Respondent was aware of the act perpetrated by him. It is well-
settled that intention can develop on the spot and knowledge of the consequences of his act is apparent from his choice of weapon which was a sharp edged, to inflict injuries on the hapless octogenarian victim. In this context, in Sanjeev vs. State of 13 Haryana it was held that;
13
(2015) 4 SCC 387 Crl.A. No.08 of 2020 22 State of Sikkim vs. Rupesh Manger (Thapa) "16. It is settled principle of law that, to establish commission of murder by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused."
[emphasis supplied] 11(i). The Learned Trial Court while extending the benefit of Section 84 of the IPC to the Respondent observed that the Respondent had set up the plea of insanity since the inception and even claimed ignorance about the occurrence of the concerned incident. We cannot agree with this observation as the plea of insanity came only after six months of the Respondent's incarceration as already discussed. The Learned Trial Court also found that D.W.1 in her evidence had stated about the mental health condition of the Respondent supported by the evidence of P.W.2. The Learned Trial Court further relied on the evidence of P.W.1 who stated that the Respondent had been told by D.W.1 that he had been brought back to Sikkim due to some sickness, while PWs 7 and 8 had also heard about his return to Sikkim due to some sickness. Pausing here briefly, it is relevant to notice that except P.W.2 and D.W.1 the other witnesses have only mentioned that they heard about his sickness but did not qualify it with the word ‗mental'. The Learned Trial Court while concluding that the evidence of P.W.1 regarding his mental status could not be demolished by the Learned Public Prosecutor in his cross- examination also concluded that the claims regarding the Respondent's mental condition found corroboration from the materials on record including the evidence of C.W.1 Dr. Netra Crl.A. No.08 of 2020 23 State of Sikkim vs. Rupesh Manger (Thapa) Thapa, who during his cross-examination was shown Exhibit ‗D' issued by the CRH, Manipal. The Learned Trial Court observed that P.W.14 admitted that the drug ‗lorazepam' prescribed to the Respondent vide Exhibit ‗D', is a psychotropic substance apart from being an anxiolytic agent. It was thus concluded in the impugned Judgment as follows that;
"24. ................. Since there is no positive finding of the accused being under the influence of any other drug or substance while being examined by PW14 the only reasonable inference is that he was probably under the influence of the said tablet/drug. Apart from the above facts and circumstances even the manner in which the deceased was attacked by the accused speaks volumes about his mental condition during the said time. As discussed earlier above, going by the evidence of PW1 the accused was trying to take out the wind pipe from the neck of the deceased which was already cut. The said action of the accused seems absolutely abnormal and absurd. He also did not try to flee the scene. Suffice it to say, all the above facts and circumstances make it amply clear that the accused was suffering from insanity at the time of the incident. ................." [emphasis supplied] While being in disagreement with the above observations it is noticed that P.W.14 the Doctor has not opined as to what would be the effect of ‗lorazepam' on the mental state of a person, besides, his opinion that the Respondent was under the influence of some psychotropic substance apart from alcohol was only a clinical assessment sans laboratory tests. That apart, ‗lorazepam' was prescribed to the Respondent in October, 2015 while the Respondent was examined by P.W.14 in October, 2016. The witness deposed that the drug is an ‗Anxiolytic'. In Shorter Oxford English Dictionary on historical principles, Sixth Edition, ‗anxiolytic' is said to be a drug that reduces anxiety. P.W.15 the Doctor who conducted autopsy on the victim in cross-examination deposed that ‗lorazepam' tablet is a psychotropic substance which can also be Crl.A. No.08 of 2020 24 State of Sikkim vs. Rupesh Manger (Thapa) used for other purposes ―like sedative‖. This statement requires no elucidation. If, this be so, then it can safely be assumed that the drug would have made the Respondent less anxious and unaggressive, whereas his act was one of aggression, committed in the absence of any other resident of the house. The finding of the Learned Trial Court that the act was due to the effect of the drug in this context is erroneous. We cannot bring ourselves to agree with the Learned Trial Court that the action of the Respondent trying to take out the wind pipe on the neck of the deceased which was already cut was ―absolutely abnormal and absurd‖. It may be abnormal and absurd but it most certainly does not tantamount to insanity.
(ii) In Paragraph 26 of the impugned Judgment, the Learned Trial Court observed that though the onus to prove unsoundness of mind is on the accused he is not required to prove the same beyond all reasonable doubt but is to merely satisfy the Court about the same through preponderance of probabilities. That, Surendra Mishra's case supra can be referred to in this context.
That, notwithstanding the same his said condition has been cogently established beyond any doubt. We are in disagreement with this view for the reason that Exhibit ‗A', ‗C' and ‗D' do not fortify the Respondent's claim regarding his mental illness at the time of offence. The Learned Trial Court was impressed with the fact that the Respondent did not try to flee the scene after commission of offence. The reaction of different individuals to a particular act are not similar and merely not absconding from the scene does not render him guiltless unless proof of insanity is furnished. In this context, in Elavarasan (supra) it was inter alia Crl.A. No.08 of 2020 25 State of Sikkim vs. Rupesh Manger (Thapa) held that the fact that the Appellant had not escaped from the place of occurrence was no reason by itself sufficient to declare him to be a person of unsound mind, incapable of understanding the nature of acts committed by him as experience has shown that different individuals react differently to same or similar situations. Some may escape from the scene of occurrence, others may not, while some may even walk to the Police Station to surrender and report about what they have done. Such post event conduct may be relevant to determine the culpability of the offender in the light of other evidence on record, but the conduct of not fleeing from the spot would not itself show that the person concerned was insane at the time of the offence.
(iii) In Sheralli Wali Mohammed (supra) the Supreme Court observed that the law presumes every person of the age of discretion to be sane unless the contrary is proved. That, it would be very dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. The mere fact that no motive has been proved as to why the accused murdered his wife and child or the fact he made no attempt to run away when the door was broke open, would not indicate that he was insane or, that he did not have the necessary mens rea to commit the offence.
(iv) The Learned Trial Court had also observed that the Prosecution failed to prove mens rea. In Hari Singh Gond (supra) the Supreme Court while referring to Sheralli Wali Mohammed (supra) inter alia observed that mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within the ambit of Crl.A. No.08 of 2020 26 State of Sikkim vs. Rupesh Manger (Thapa) Section 84 of the IPC, which embodies the fundamental maxim of criminal law, i.e., actus non facit reum nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). 12(i). In Unniri Kannan (supra) relied on by Learned Senior Counsel, the Sessions Court convicted the Appellant under Section 302 of the IPC and sentenced him to rigorous imprisonment for life for causing the death of his mother by inflicting multiple injuries. The Hon'ble High Court extended the benefit of Section 84 of the IPC and acquitted him. The evidence on record therein was revelatory of the fact that the Appellant was prone to periodic epileptic fits from childhood and would begin to exhibit signs of mental instability some twenty-four hours before such attacks. That, the symptoms of an impending epileptic seizure was seen on the day of the incident. The High Court observed that in light of the characteristic symptoms of epileptic insanity as elucidated by Modi in his Medical Jurisprudence, it was clear that if the Appellant assaulted his mother during a period of epileptic insanity he certainly would not have known at the moment the nature of his act. As distinguished from the above citations, there is no evidence for this Court to fall back on to arrive at a conclusion that the Respondent was suffering from mental illness at the time of offence.
(ii) The acts of the Appellant in the case of Mst. Shanti Devi discussed (supra) and the evidence furnished to prove her mental condition are vastly different from the evidence in the case at hand. There is no evidence to establish that the Respondent's act of attacking his grandfather stemmed from insanity, in the absence of proof of erratic or insane behaviour immediately, preceding, Crl.A. No.08 of 2020 27 State of Sikkim vs. Rupesh Manger (Thapa) attending or post the incident. The Learned Trial Court has failed to specify reasons for concluding that the Respondent was insane. Mere reliance on various ratio of the Hon'ble Supreme Court cannot bolster the finding of the Learned Trial Court, unless the facts are identical.
(iii) Learned Senior Counsel for the Respondent had relied on the ratio of Surendra Mishra (supra) to the extent that the burden of proof under Section 105 of the Evidence Act while claiming exemption under Section 84 IPC is on the accused but that it does not extend to proof beyond all reasonable doubt, but merely by a preponderance of probability. It may be clarified that even if the Appellant establishes unsoundness of mind, Section 84 of the IPC will not come to his rescue in case it is found that he was aware that what he was doing was wrong or that it was contrary to law. That, in order to ascertain the above, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime and production of medical evidence and other relevant factors. Medical documents Exhibit ‗A' and ‗C' pertain to one year before the incident and Exhibit ‗D' a good six months' after the incident, thereby shedding no light on his mental condition at the time of the incident. This Court most certainly does not ignore the fact that the Respondent suffered from mental health issues but a preponderance of probability must exist to indicate that he committed the act while under an episode or attack of insanity, for which evidence is clearly lacking herein.
13. The Learned Trial Court despite having observed in Paragraph 23 of the impugned Judgment that for attracting the Crl.A. No.08 of 2020 28 State of Sikkim vs. Rupesh Manger (Thapa) provision of Section 84 of the IPC, it is imperative to take into consideration the behaviour of the Respondent immediately preceding, attending and following the concerned crime, extended the benefit of the Section by citing the ratio of Surendra Mishra (supra) and Smt. Shanti Devi (supra) without discussing how the ratios were relevant to the case at hand.
14. The weapon of offence was snatched by P.W.1 from the Respondent, whom he surprisingly did not attack in retaliation, even in the heat of the moment and is being flagged here for the reason that if he was undergoing a bout of insanity at that moment, it would have been irrelevant as to who was attacking. He was aware of whom he chose to assault revealing consciousness of his action. In light of the aforementioned discussions, it is evident that the Respondent had failed to discharge the burden cast upon him under Section 105 of the Evidence Act. Although Learned Senior Counsel has urged that the Respondent has rehabilitated in society, no submissions were advanced to the effect that he is on continued treatment for his alleged mental illness. No records emerge to indicate his hospitalization for mental illness post his acquittal by the impugned Judgment and Orders issued therein for his continued psychiatric care.
15. On the anvil of the foregoing discussions and the evidence on record, we are of the considered opinion that the Learned Trial Court erred in extending the benefit of Section 84 of the IPC to the Respondent and thereby acquitting him of the offence under Section 302 IPC.
16. We accordingly convict the Respondent of the offence under Section 302 IPC, duly setting aside the assailed Judgment. Crl.A. No.08 of 2020 29
State of Sikkim vs. Rupesh Manger (Thapa)
17. The matter be posted for hearing on Sentence.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
24-08-2022 24-08-2022
Approved for reporting : Yes
ds