Allahabad High Court
Ram Singh vs State Of U.P. on 22 December, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 48 Case :- JAIL APPEAL No. - 5202 of 2012 Appellant :- Ram Singh Respondent :- State of U.P. Counsel for Appellant :- From Jail,Ajay Kumar Srivastava,Chandra Bhushan Tiwari (A.C.) Counsel for Respondent :- A.G.A. Hon'ble Suneet Kumar,J.
Hon'ble Syed Waiz Mian,J.
Per Hon'ble Syed Waiz Mian,J.
1. This Jail Appeal has been filed by appellant Ram Singh, through Superintendent, District Jail, Lalitpur, under section 383 Cr.P.C. against judgment of conviction and sentence dated 28.3.2011 passed by Additional Sessions Judge (Ex Cadre), Lalitpur in Session Trial No. 44 of 2007, State vs. Ram Singh, arising out of Case Crime No. 1089 of 2007, under Section 302 I.P.C., whereby appellant was convicted for offence punishable under section 302 I.P.C. to life imprisonment with fine of Rs. 25,000/- and in default of payment of fine undergo three years' additional imprisonment.
2. Brief facts of the case in nutshell are as under:
3. Informant-None Raja, has stated in the written First Information Report that his brother Ram Singh was suffering from mental illness/ disorder, since last ten years. On 22.03.2007, at around 1 p.m. his wife Smt. Guddi Raja, Badi Raja w/o appellant Ram Singh, his daughter and son, aged about 5 and 1 years, respectively, were present in the house. All of a sudden appellant-Ram Singh, lost his mental balance and assaulted all the aforesaid persons with axe causing injuries and all the injured succumbed to the injuries. 2
4. Bodies were lying in the courtyard of the house and the incident was seen by many villagers. Appellant-Ram Singh, while running from the house was caught by the villagers Narendra Singh, Mulayam Singh, Mansingh and Govind Das.
5. On the strength of the First Information Report, case at Crime No. 1089 of 2007, under Section 302 I.P.C. came to be registered on 22.03.2007, at Police Station-Kotwali, District- Lalitpur.
6. P.W.-4, Sub Inspector, Kallu Prasad Yadav, written the First Information Report, Chik at 2.30 p.m. and he also entered the substance of the First Information Report in the G.D. No. 33 of 22.03.2007. Investigation was entrusted to the P.W.-7, N.H. Farooqui, who took the investigation at the direction of Station House Officer and reached at the place of occurrence and saw that dead bodies of Smt. Guddi Raja w/o Naune Raja, Smt. Badi Raja w/o Appellant-Ram Singh, Kumari Mandavi and Mangal Singh daughter and son of appellant-Ram Singh, were lying in the courtyard of the house. Thereafter, Station House Officer, Kotwali, Raj Bahadur Sahu and S.I. Shri Ram Ratan Verma, along with police personnel also reached on the spot. In the presence of Panch, inquest reports of the bodies of the deceased, on the dictation of S.H.O. Raj Bahadur Sahu, and other necessary papers in connection with the inquest of the bodies of the deceased, were prepared by Sub Inspector N.H.Farooqui.
7. P.W.9-, Raj Bahadur Sahu, Sub Inspector, has prepared site plan of the place of occurrence, paper no. 66 Ka. He in the presence of Mahesh Prasad and Virendra Singh, collected the blood 3 stained and plain earth and same were put in two separate small containers and both containers were sealed.
8. P.W.-9, Raj Bahadur Sahu, had also collected the blood stained axe in the presence of the witnesses and memo, paper No. 7-ka was prepared and signed by accused Ram Singh, who was caught on the spot; Ram Singh had worn blood stained shirt and the accused was asked to strip off his shirt. It was also taken into possession and memo, in the presence of Virendra Singh and Mahesh Prasad was prepared and signed.
9. Inquest report of the dead bodies of the deceased and other necessary papers were forwarded to district mortuary to conduct autopsy to ascertain real cause of death of the deceased.
10. Dr. M.C. Gupta, posted in District Hospital, Lalitpur, conducted the autopsy over the bodies of the deceased and he in his writing and signatures, prepared autopsy reports of the deceased.
11. Ram Ratan Verma, who had also reached on the place of occurrence accompanying Station House Officer, together with N.H. Farooqui, S.I. had conducted the inquest over the bodies of the deceased. On the strength of the collected incriminating evidence, during investigation, Investigating Officer has submitted charge sheet, paper no. 3 Ka, against Ram Singh under Section 302 I.P.C.
12. Learned Chief Judicial Magistrate, vide order dated 18.05.2007 committed the case for trial of the accused to District and Sessions Judge. In the trial Court a criminal case was registered as S.T. No. 44 of 2007.
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13. Charge under Section 302 I.P.C. against the accused was framed on 24.03.2009 but the accused has denied the charge and claimed trial.
14. Prosecution in order to prove charge under Section 302 I.P.C. against the appellant/accused Ram Singh examined, P.W.-1 Naune Raja, P.W.2-Narendra Singh, P.W.3-Govind Das, P.W.-4 Kallu Prasad Yadav S.I., P.W.5-Dr. M.C. Gupta, P.W.-6 Ramesh, P.W.-7 N.H.Farooqui, S.I. P.W.-8 Ram Ratan Verma, Sub Inspector (retired) P.W.9- Raj Bahadur.
15. Learned trial Court examined, Dr. Amrendra Kumar C.W.-1 consultant, psychiatrist as court witness.
16. Statement of accused under Section 313 Cr.P.C. was recorded. Accused Ram Singh, admitted in his statement that before and at the time of incident he was in the state of unsoundness of his mind and in that state of mind, injuries to the deceased were caused. Deceased Smt. Guddi Raja, was wife of his brother Naune Raja whereas, Smt. Badi Raja, Kumari Mandavi and Managal Singh, were his wife, daughter and son respectively.
17. With regard to the evidence that villagers Narendra Singh, Mulayam Singh, Mansingh and Govind Das, had caught him with assault weapon axe on the spot, accused has stated feigned ignorance, saying that he had gone mad.
18. Accused in his statement under Section 313 Cr.P.C. has lastly stated that 10 years, prior to the incident, he was under medical treatment of Dr. Rajiv Jain, for his mental illness. For the same, he was also treated in Gwalior and M.P. Incident had occurred because of his madness. Subsequently his brother was called at the 5 police Station by Daroga Ji and on his direction his brother got written the First Information Report.
19. On behalf of appellant-accused- D.W.-1 Dr. Rajiv Jain was examined.
20. Learned trial Court heard the rival contentions of the learned counsel for the parties and on the strength of the evidence on record convicted the appellant/accused for offence under Section 302 I.P.C. and sentenced him with life imprisonment and also imposed fine of Rs. 25,000/- and in default of payment of such fine he was directed to undergo three years additional imprisonment.
21. Heard Shri Chandra Bhushan Tiwari, Amicus Curiae, for the appellant and Ms. Manju Thakur, learned A.G.A.-Ist, for the State and perused the record.
22. Appellant/accused in his statement under Section 313 Cr.P.C. has not denied the incident. He has admitted that in the alleged incident his Bhabhi (Sister-in-law) his wife Smt. Badi Raja, his daughter Kumari Mandavi and his son Mangal Singh had been killed. The accused has also expressed his ignorance regarding the evidence on record. However, he has further stated that his trial was based on wrong facts. Accused has also admitted in his statement that due to his loss of mental balance, at the time of incident, injuries to the deceased were having been caused. He has taken defence that at the time of incident he was suffering from mental disorder.
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23. At the time of statement, under Section 313 Cr.P.C., on 28.04.2011, the accused has admitted that after the treatment at Varanasi he has become normal.
24. In this case the commission of alleged incident has not been denied by the accused and also the manner of death of the deceased has not been disputed. The accused before the learned trial Court had claimed the benefit of Section 84 of I.P.C. Section 84 stipulates that :
" 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."
25. In the Indian Penal Code, Section 76 to Sections 106 are general exceptions. Onus lies on the accused to prove that at the time of alleged incident, due to unsoundness of his mind he was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. If, accused succeeds to establish that at the time of incident, he was suffering by a mental disorder of such magnitude that he was incapable to know his act and succeeds to establish to bring his case under Section 84, he would be entitled to the benefit of Section 84, of the Code.
26. This Court has to consider the circumstances that proceeded, attended or followed the crime, but it is equally true that such circumstances must be established by credible evidence.
27. In Bapu Gajraj Vs. State of Rajsthan, reported in 2007, Vol.8 SCC 66 Apex Court has held as follows:
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"10. Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).
11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in 'History of the Criminal Law of England, Vo. II, page 166 has observed that if a persons cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section This Court in Sherall Walli Mohammad v. State of Maharashtra, 1972 Cr. LJ 1523 (SC) , 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 8 the offence. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case. (1843) 4 St. Tr. (NS) 847. Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act ; but merely a cessation of the violent symptoms of the disorder is not sufficient."
28. In Sudhakaran Singh vs. State of Kerala, reported in 2010 , Vol. 10, SCC 582, the plea taken was that the appellant was suffering from "paranoid schizophrenia". The term has been defined in Modi's Medical Jurisprudence and Toxicology1 as follows:
"Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than in females. The main characteristic of this illness is a well-elaborated delusional system in a personality that is otherwise well preserved. The delusions are of persecutory type. The true nature of this illness may go unrecognised for a long time because the personality is well 9 preserved, and some of these paranoiacs may pass off as a social reformers or founders of queer pseudo- religious sects. The classical picture is rare and generally takes a chronic course. Paranoid Schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage.
29. P.W.-1 Naune Raja, in his ocular has evidence has stated that on his dictation, First Information Report was having been written by Virendra Singh and after the same was read over to him, he had signed the report. P.W.-1 has recognized and proved written First Information Report as Paper No. 5 Ka as exhibit Ka-1.
30. P.W.-1, Naune Raja, has admitted in his cross examination that at the time of alleged incident he was not present at the spot and when he had reached at the place of occurrence the alleged incident had already been occurred. He has also said that with regard to the alleged incident he was informed by Raghvendra Singh but he (Raghvendra Singh) has not been examined, therefore, the above statement of P.W.-1 Naune Raja, that he was informed by Raghvendra Singh and upon such information he had reached on the place of occurrence has not been corroborated by Raghvendra Singh.
31. In the First Information report, Exhibit Ka-1, the alleged incident is said to have been witnessed by many villagers but none of them has been indicated in the written First Information Report. In the First Information Report it is alleged that when he had reached on the spot, he saw that accused was caught hold by the 10 villagers Narendra Singh, Mulayam Singh, Mansingh and Govind Das. It is also alleged, that accused was caught by the villagers while he was running from the house.
32. P.W.-2, Narendra Singh, an eye witness, has deposed in his testimony that he does not remember the date of the incident. On the date (day) of the incident, by axe accused Ram Singh, had assaulted his wife and two children wife of P.W.-1 Naune Raja. The incident occurred at around 1-1.30 p.m., when he had reached at the place of occurrence many villagers of his village had reached there. Villagers Rajpal Singh, Mulayam, Takhat, Govinda who had reached on spot. Next-P.W.1 has stated that the dead bodies were lying scattered; he had seen that Ram Singh had tried to run from his granary (Bakhari); he was wielding blood stained axe; he and other people had caught him. At the time of incident, parents and brother of accused Ram Singh, were not present. However, he did not see Ram Singh to commit the incident of killing the deceased.
33. P.W.-2 Narendra Singh, has been declared hostile and he has also been cross examined by the prosecution. He has stated in his cross examination that accused Ram Singh intermittently used to suffer from mental dis balance. He was also got treated by his father.
34. P.W.-2 Narendra Singh, in his cross examination, done on behalf of the accused, has stated that Ram Singh was also treated for his ailment in Lalitpur and Gwalior.
35. However, at the time of his marriage he was not in such a mental state. After the marriage, during his mental loss, he had 11 run two to three times from his house; Once he went missing for about a year and he was found in shabby condition near a temple; he was brought back to his house. Ram Singh, on his main gate, was caught by him and other villagers.
36. At the time when he saw Ram Singh, he was abusing and his eyes had turned red. The parts of the dead bodies of the deceased were scattered in the granary (Bakhari); Virendra Singh had collected the parts of the bodies of the deceased and put them in the gran (Bakhari) from the gate of house; Granary (Bakhari) was situated at the distance of 4-5 steps.
37. He has also corroborated the evidence of P.W.-1 Naune Raja to the effect that Ram Singh was treated for his ailment at Gwalior and Lalitpur.
38. P.W.-2 Narendra Singh has also stated in his deposition that Ram Singh used to lose control over his mind intermittently. Since the marriage until the alleged occurrence, he had suffered occasionally from his mental loss.
39. P.W.-3 Govind Das, on 05.12.2009, in his ocular evidence has said that about two years, eight and half months before the incident, at 1.00 p.m. had occurred; he was staying back at his home; he heard the screams of children and he rushed to the spot and he witnesses at the gate, he saw Virendra Singh, Rajpal Singh Havansh Singh, Mulayam Singh, Malkhan Singh and Indal Singh, and other 10-12 persons had already reached at the house of Naune Raja; Ram Singh was having blooded axe in his hand; he had killed his wife, children and wife of Naune Raja; all the dead bodies of the deceased were lying scattered in the courtyard. Ram 12 Singh had axed all the deceased to death. On challenge by him and other persons, accused with axe followed them; they hidden themselves; when Ram Singh, threw his axe to run from the spot, they caught and tied him with tree.
40. P.W.-3, Govind Das, has stated in his examination in chief that after the accused having been tied with the tree, they went in the courtyard of the house and witnessed that the dead bodies of Smt. Badi Raja, Smt. Guddi Raja, Kumari Mandavi and Mangal Singh, were lying there. Bodies of the deceased were cut by axe to pieces. Police had also been informed.
41. P.W.-3, Govind Das in his examination in chief has not deposed about the arrival of the informant Naune Raja and his parents on the place of occurrence.
42. P.W.-3 in his cross examination has stated that in respect of murder of the deceased the villagers had informed the police; any member of the family had not informed the police; from his house, Ram Singh's house is situated at the distance of 500 meters. He and other persons had caught and tied the accused with tree; he had tried to run from his house. At about 200 steps, Ram Singh was caught; he was not caught at the gate of his house. P.W.-3 has further stated in his cross examination that none had went to inform Naune Raja in respect of the incident; Naune Raja on hearing noise had reached on the spot; he did not know as to whether Raghvendra Singh had gone to inform Naune Raja or not.
43. P.W.-3 Govind Das, has also stated that Ram Singh had thrown the axe near the dead bodies in the courtyard; the clothes worn by him were blood stained; on catching hold of the accused 13 blood on their clothes had not transferred; Ram Singh was not in a state of his mental loss; he did not know whether Ram Singh was medically treated or not; he has also admitted in his cross examination that Ram Singh, before the incident had absconded from his house and had returned to his house after the lapse of one month; Since he (P.W.-3) did not remain at his house therefore, he does not know about treatment of Ram Singh; Ram Singh, before the alleged incident, had not absconded in his presence nor during his presence, Ram Singh had returned to his house; he was working as labour. He did not stay at one place permanently; It would be wrong to suggest that on the date of the incident, he was not present in the village; it would also be wrong to suggest that due to any police pressure he has deposed; He has come voluntarily to lend evidence.
44. From the depositions of P.W.-1 Naune Raja, P.W.-2 Narendra Singh, P.W.-3 Govind Das, it is reflected that at the time of incident none of these witnesses were present at the place of occurrence. The incident has admittedly been committed by the accused. All these witnesses had reached at the spot after the deceased having been killed. However, there is minor discrepancies in evidence of P.W.-1 to P.W.-3 in the face of admission of incident by accused in his statement under Section 313 Cr.P.C.
45. P.W.-1 to P.W.-3 have also not been confronted on behalf of the accused to the effect that Ram Singh had not axed the deceased to death. In this case, killing of the deceased by accused by the assault of axe is admitted to him.
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46. It is a defence of the accused that at the time of the commission of the incident he was in the state of mental disorder. On behalf of the accused, the plea of insanity, at the time of commission of crime, has been setup, therefore, onus to prove insanity at the the time of commission of the crime lies on him.
47. To ascertain whether accused was suffering from insanity at the time of commission of offence, his previous behaviour, behaviour at the time of incident and just thereafter has to be evaluated/examined.
48. Learned trial Court has concluded that the accused Ram Singh was not suffering from mental disorder at the time of commission of incident and thus he was not found incapable of knowing the nature of his act or that he was doing what either was wrong or contrary to law. This finding of the learned trial court in respect of the mental state of the accused at the time of the commission of the incident, is under challenge in the present appeal.
49. On behalf of the accused D.W.-1 Dr. Rajiv jain, in his cross examination on 29.07.2011, has stated that on 29.01.2000, at about 12 p.m. he had conducted EEG (Electroencephalogram) (Mental examination) of Ram Singh at his Clinic Mahabir psychiatrist Center, at Lalitpur, and he had diagnosed him as "normal".
50. D.W.-1, Rajeev Jain, in sequence of his evidence has stated that the family members of Ram Singh had informed him about the symptoms and accused on the basis of narration of symptoms he (DW-1) was of opinion that he could be afflicted with disease 15 mainly ''Mania' and in his view the said illness may be persisting since last two years. In this disease, symptoms appear suddenly and after some time they are disappeared. However, in EEG examination of the patient, any swelling etc was not found in the brain of the accused. Other symptoms of disease ''Mania' are excessive anger, staying awake day in and day out, to run, not to have meal punctually, non maintenance of hygiene, intermittently to take medicine causing it recurrence and also doing abnormal activities. All these symptoms were also having been told to him (D.W.-1 Dr. Rajiv Jain) by the members of the family of the accused.
51. D.W.-1 Dr. Rajeev Jain, has further stated, in his occular evidence that at the time of examination of patient, in view of the symptoms of patient he had opined that accused was afflicted with chronicle disease. This illness is bound to recur. The main reason for the illness to recur in future could be due to non taking of medicine regularly. If, medicines are not taken punctually, then there is possibility of its aggravation and the said illness may turn to psychosis in humans.
52. It is also stated in the testimony of D.W. 1, Dr. Rajeev Jain, that ''Chronical disease' may reappear after few years and the symptoms of the patient may also be aggravated. If a patient is so inflicted, he may not be able to identify a person and on aggravation, such a person can also assault.
53. Dr. Jain-DW-1, has proved EEG report, paper no. 111 Kha, and also EEG book 112 Kha, as Exhibit Kha-1 and Exhibit Kha-2. He has further stated that the papers have been signed by him. He 16 has clarified that EEC report Exhibit Ka-1, is based on the basis of EEC book Exhibit Ka-2.
54. D.W.-1, Dr. Rajiv Jain, in his cross examination has stated that he had privately practised in Lalitpur from the year 1994 to January, 2010; in his clinic he has rendered his services until 2005; name of the persons, who brought accused Ram Singh is not mentioned in his report. Symptoms of patient were told by the family members of the accused and few symptoms were found on the basis of his examination. He had delivered all the treatment papers to the patient and he does not remember as to how many times patient Ram Singh had come to his clinic for his treatment.
55. He has next stated that at the time of examination of the patient, he was found normal. Such patients are advised to take continuous treatment for 2-3 years. He has also expressed his inability to recall as to how long Ram Singh had come at his clinic for his treatment. At the instance of the family members of the patient he had recorded the name accordingly. Normally he does not identity his patients if they again appear before him, therefore, he cannot say that the accused, who was present in the Court, was Ram Singh or not. It would be wrong to suggest that he had not treated Ram Singh and he had prepared a false medical report of the accused at his instance.
56. From the evidence of D.W.-1 Dr. Rajiv Jain, it is reflected that he had examined Ram Singh at his clinic, on 29.11.2000 at 12 noon and on his examination based on the EEG, he was found normal.
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57. Having regard to his remaining evidence, it is academic in nature, because of the fact that he had expressed his opinion about the disease on the narration of symptoms as having been told to him by the family members of the accused. D.W.-1, Dr. Rajiv Jain has expressed his opinion in the given circumstances. However, upon examination of the accused, he had found him mentally normal. As such, the testimony of Dr. Rajiv Jain, does not help the accused in his plea of insanity. Dr. Jain, has also expressed his inability to remember how many times accused had visited his clinic for his treatment. Further, Dr. Jain was consulted on 29.21/2000, whereas, incident is stated to have occurred on 22.03.2007.
58. In the report 111-Kha, Dr. Rajiv Jain, Neuro Psychiatrist has also conclusively opined that EEG of Ram Singh was within normal limits.
59. Accused vide O.P.D. No. 17704 dated 16.11.2007, on his (Ram Singh) reference to ascertain his mental status examination, no history regarding his illness was available with the Doctor concerned, therefore, Doctor vide his report has stated, in paper No. 11 Kha, that it was not possible for him to arrive at any conclusion regarding the mental status of Ram Singh.
60. Doctor advised accused Ram Singh, that he would be put under observation to ascertain his mental status for at least 14 days. He had referred Ram Singh to mental hospital, Varanasi for further treatment.
61. Shri Amrendra Kumar, Medical Officer/ Psychiatrist, in mental hospital, Banaras, in compliance of Court order dated 18 11.12.2007, examined Ram Singh; during admission in the hospital on 17.12.2007 and 02.01.2008, medical officer observed that he suffered from ''unspecified, Non Organic Pshchotic Disorder (F-29).' Ram Singh was medically examined on 17.11.2007 and 201.2000, whereas, incident had occurred on 20.03.2007.
62. The Medical Officer, vide report dated 02.01.2008, paper no. 16 Kha/2 one column and B-pertaining to other facts about the insanity, communicated to him by other medical officer did not find anything "significant".
63. Director and Chief Superintending Medical Hospital Varanasi, vide letter dated 28.02.2008, addressed to the District and Session Judge, Lalitpur, who had conducted the trial of the accused, stated that in compliance of his (District and Sessions Judge, Lalitpur), letter no. 6 dated 22.01.2008, prisoner-accused's mental status was examined by Shri Amrendra Kumar, Medical Officer/ Psychiatrist, in mental hospital, Banaras, and stated that his mental condition found was better; he took his meal and also slept; he was maintaining his hygiene and also he had complied the directions; accused was giving most of the right answers to the questions put to him; he often smiled; mumbled without reason. Ram Singh, vide letter dated 19 Kha, dated 28.02.2008, was not found fully healthy. It was averred in the letter that as per the advice of medical officer/ psychiatrist he was being treated.
64. Director and Chief Superintendent Medical Hospital Varanasi, vide letter No. 2008/507/Ram Singh/dated March 15th 2008, form no. 21 Kha/ to Jail Superintendent Officer Prison, Lalitpur, was informed about the treatment, better condition of Ram Singh; he 19 was being treated for his illness and regarding his fitness his matter would be discussed in the forthcoming quarterly meeting of the Board.
65. Director and Chief Superintendent Mental Hospital, Varanasi, vide letter 2008/September 24/08, regarding mental state of prisoner Ram Singh, Superintendent District Jail, Lalitpur, was informed that in the visitors Board meeting dated 12.09.2008, Ram Singh was declared mentally unhealthy and it was also advised to continue his (Ram Singh's) treatment.
66. Chief Medical Superintendent, Mental Hospital, Varanasi, vide his report no. 2009 dated 26.02.2009, paper no. 38 Kha to learned trial Court Judge, Lalitpur, with regard to mental status of Ram Singh, in connection with his trial in the instant case, it was reported that in the half yearly meeting of visitors Board, held on 17.02.2009, Ram Singh, was declared mentally healthy and Ram Singh was also recommended to be transferred from the hospital to Jail concerned.
67. There is also treatment card dated 15.03.2009 of accused by Dr. Shri Amrendra Kumar, Medical Officer/ Psychiatrist, who had prescribed two tablets and another capsule for Ram Singh, to be continued for at least three months and to be stopped on the advise of a Psychiatrist.
68. Alleged incident is said to have occurred on 22.03.2007, whereas, other medical reports, regarding medical status of accused pertains, between the period 16.11.2007 to 17.02.2009. It is also evident from the above referred medical reports that after the alleged incident dated 22.03.2007, accused for his mental illness 20 was treated after the lapse of about seven and half months. However, he was reported vide paper no. 111 Kha, Exhibit Kha-1, on 29.01.2000, within the normal limits of his mental condition.
69. P.W.-1, Naune Raja, in his cross examination, with regard to mental status of the accused before the alleged incident, has stated that one day before the incident, the accused was mentally fit he was suffering from mental illness and he occassionly had fits and during fits, he would sit in isolation and he would not take his meal regularly and also upon persuation he would not have meal; he would eat at will but he did not stay hungry for a couple of days. During illness his eyes would turn red; he would flee from the house, but since 5-6 years he had not fled from the house. He had fled about 10 years earlier from the house and had returned on his own. Though attempted to trace him, by his father and family members was made but they did not come to know about his whereabouts. Ram Singh had fled from his house five years before the incident. Accused was married to the daughter of Brijraj Singh. Accused at the time of his marriage was not mentally ill but at that time also he would suffer from fits.
70. P.W.-1, Naune Raja, has also further stated that he has no dispute with accused with regard to property, however, due to the illness of the accused, he did not meet him; he and accused are living in one house and share common courtyard; there is same main gate to their house; he was not on bad terms with accused. He would not abuse him or his wife nor he (Ram Singh) had ever beaten his wife.
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71. P.W.-2, Narendra Singh, has turned hostile. He, in his cross examination done on behalf of the accused has stated that Ram Singh after marriage had absconded 2-3 times and he went missing for a year; his family members on search found him near a temple in shabby condition. He was brought back to the house in disturbed mental state, he would not have his meal regularly.
72. P.W.-2 Narendra Singh, is not family member of the accused. He lives at half a kilometre distance from house of the accused. Deposition of P.W.-2 that Ram Singh after his marriage had absconded 2-3 times and upon search by his family members, he was found near the temple has not been supported by the P.W.-1 Naune Raja. In this connection, Naune Raja, has stated that accused had absconded 10 years before the day of his deposition before the Court (i.e. 28.07.2000) and had returned of his own after lapse of one year; he was not traced by his father. As such, statement of P.W.-2 Narendra Singh, is inconsistent with the evidence of P.W.-1 Naune Raja. P.W.-1 Naune Raja, has categorically stated in his statement that accused Ram Singh after his marriage had fits and therefore, he was treated by Dr. Rajiv Jain at his Clinic, Lalitpur, and also at Gwalior, by Dr. Malhotra. Accused went there along with his father and uncle; his father had incurred the expenses of his treatment.
73. P.W.-1 Naune Raja, has expressed his ignorance about the treatment of Ram Singh's mental illness at Banaras, during his incarceration in jail.
74. P.W.-2 Narendra Singh, who turned hostile has also stated in his testimony that accused was treated at Lalitpur and Gwalior. 22
75. P.W.-3, Govind Das, has said that Ram Singh for his mental illness was treated at Gwalior or not, was not known to him. He also does not know whether Ram Singh suffered fits or not. However, before the incident Ram Singh had not gone mad and before the incident Ram Singh had neither absconded nor returned to this house in his presence.
76. P.W.-3, Govind Das has categorically stated that at the time of incident he was staying in the village but before the incident, he had gone to Jhansi to do labour work. He does not work as labour at any permanent place. P.W.-3-Govind Das, before the alleged incident had not stayed in the village and had remained out of the village to earn his livelihood, therefore, it appears that he was not knowing about the mental illness of the accused before the occurrence. It is clear, that there is evidence that accused Ram Singh, soon before the incident was mentally sound.
77. It is admitted to P.W.-1 Naune Raja, that accused was treated at Lalitpur, and Gwalior by Dr. Malhotra, but there is no documentary evidence on record about the treatment of the accused at Gwalior. However, regarding the treatment of accused at Lalitpur, Jhansi and Varansi, documentary evidence is on record.
78. Accused Ram Singh, was treated at Varanasi, for his mental illness, during his incarceration from 2007-2009, he was also treated for his mental illness at Dr. Rajiv Jain's Clinic at Lalitpur.
79. Documentary evidence with regard to the treatment of mental illness of the accused at Jhansi, Lalitpur and Varanasi is also not pertaining to soon after the incident, as such, it is found that soon 23 before and soon after the incident, accused was not mentally suffering to such an extent that he could be said to be incapable to know about the nature and consequences of his act.
80. It is also reflected from the appraisal of the oral evidence of the witnesses that the accused Ram Singh at the time of incident had emerged in public view from his house and was seen to have weilding blood stained axe and also his cloths were stained with blood. He had tried to escape, but he was caught hold by the witnesses, it has come in evidence that at the time of being caught, his eyes were turn red and he was behaving wildly.
81. It appears from the conduct of the accused that just after the incident, he to screen himself from legal punishment, knowing that he has committed an offence, has it not been so, he would not have tried to escape from the place of occurrence with weapon of crime.
82. From the forgoing discussion it is evident that there is no documentary evidence regrading the treatment of mental illness of the appellant, before or soon after the incident. However, it had come in the evidence that occasionaly his behaviour has becomes wild. P.W.-1 Naune Raja, who is the elder brother of the applicant and also permanently resides in the same courtyard of their house is the best person to know about the behaviour of the accused, and also about his mental illness. He has deposed that since past 5 years of the occurrence, Ram Singh did not have fits. However, he has also admitted in his evidence that during the said period, accused had intermittently fits. But, there is no evidence with regard to the duration of the fits. P.W.-1 Naune Raja, has 24 categorically stated in his testimony that before the incident the accused was normal. It also transpires from above discussion that in 2007 he had contacted Dr. Rajeev Jain at his Clinic at Lalitpur, who had diagnosed him normal. Thereafter, during his incarceration in jail, and during treatment, he was found unhealthy but after treatment he became normal.
83. Dr. Rajeev Jain, has also stated in his evidence that he was not fully sure whether at the time of the alleged incident accused has had fits.
84. In our opinion, Ram Singh has had fits but it cannot be construed that he was suffering from such mental illness at the time of incident that he could be assumed to be incapable to know the nature of his act at the time of incident.
85. It is also transpires from the above analysis of the evidence on record that there is no such evidence to believe that soon before the incident, or at the time of incident or soon after the incident, magnitude of his mental illness was such whereunder he could be accepted to be incapacitated to understand the nature of his act.
86. Insanity is solely a legal and sociological concept, has no technical meaning in law or in medicine and does not connote any definite medical entity. Insanity is seen to be a social inadequacy and medically it takes the form of a mental disease. In other words, insanity implies a degree of mental disturbance so menacing and so disabling that the person may be considered from the legal point of view to be immune from certain responsibilities, may disallow him certain privileges that may require a degree of 25 competence such as a decision to marry, make business contracts or manage property but may be enough criteria for compulsory hospitalisation. Another term, which is often used but not defined is unsoundness of mind and is used as a synonym with other terms such as insanity, lunacy, madness or mental derangement or disordered state of mind due to which an individual loses the power of regulating his actions and conduct according to the rules of the society to which he belongs.
87. Reasons may be of several types. In our view, the accused may be occasionally in depressive phase. In such phase a patient may look tired and self concerned. Sadness of mood reflects in posture, movements and facial expressions. There is diminished capacity for normal affective response and the past, present and future look dark and gloomy. Suicide or suicidal attempt is often the first and the last symptom of depressive illness. Suicide is well planned and is of great danger to the patient. In the instant case, there is no evidence on record to show that the accused has ever tried to commit suicide or suicidal attempt, therefore, in typical cases , there is early morning wakening and sleep is not freshening. This is associated with loss of appetite and libido. In a reactive depression there is some external event in the environment.
88. Author ''Jaisingh P Modi' in his text ''Medical Jurisprudence and Toxicology' had defined ''Epileptic Psychosis' as:
" Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite a few of them suffer from 26 mental deterioration. Such patients are peevish, impulsive and suspicious and are easily provoked to anger on the slightest cause.
The disease is generally characterised by short transitory fits of uncontrollable mania followed by complete recovery. The attacks, however, become more frequent. There is a general impairment of the mental faculties with the loss memory and self control.
Epileptic psychosis is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as preepileptic, post epileptic and masked or psychic phases'.
Feigned Mental Ill Health has also been defined as follows:
There is always some motive for feigning mental ill health. For instance, a criminal pretends mental ill-health to escape sentence of death or a prolonged term of imprisonment for a very grave offence, such as murder, especially when he is placed on trial."
89. The detection of feigned mental ill-health is one of the responsible duties of a medical officer. Ordinarily, it is easy to detect the fraud, but at times it becomes very difficult. An individual should be detained under observation, before a definite opinion is given. It should be remembered that such person cannot be kept under observation for more than 10 days in the first instance but with the permission of the Court he may be detained for further period of 10 days up to a maximum of 30 days. During this period, the medical officer has to watch him and make a careful note of all the symptoms exhibited by him.
90. In view of the above discussion, we have seen that there is no medical evidence on record to show that before or soon after the incident, accused was suffering from Psychotic disorder that it could be assumed that accused was unable to understand the 27 nature of his act. Further, it has not been proved that the act itself was result of his mental disorder.
91. Accused has not been able to demonstrate, by means of evidence, that at the time of incident he was influenced by mental disorder. It has not come in the evidence that before the incident he had fits, further there is no evidence that before or soon after the incident he had suffered fits .
92. Hon'ble Supreme Court in Sherall Walli Mohammad v. State of Maharashtra, 1972 Cr. LJ 1523 (SC) had held that:
"The law presumes that every person of the age of discretion to be sane unless the contrary is proved. It would be most 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 why the accused murdered his wife and child or, the fact that 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 for the commission of the offence."
93. Learned trial Court in the impugned judgment and order has apparised the entire evidence on record, relevant case laws, and has discussed all the aspects of the case, including, insanity, therefore, we do not find that the impugned judgment and order is not based on sound reasons, or principle of law has not been followed, hence, we have no reason to disagree with the findings of the learned trial court.
94. In view of above discussion, we are clearly of the view that Trial Court has rightly found appellant guilty of offences with which the appellant was charged and prosecution has successfully 28 proved its case beyond doubt against the appellant, hence, he has been rightly convicted and sentenced.
95. So far as sentence regarding appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.
96. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of the Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved, as well as, society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving above object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of the society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice 29 against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].
97. Hence, applying the principles laid down by the Hon'ble Apex Court in the aforenoted judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon the appellant by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon the accused.
98. In view of the facts and circumstances, impugned judgment and order dated 28.03.2011, deserves to be affirmed and appeal is liable to be dismissed.
99. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 28.03.2011 is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court.
100. Copy of this order along with lower Court record be sent to Court concerned forthwith.
101. A copy of this order be also sent to Appellant through concerned Jail Superintendent.
Order Date :-22.12.2022 Deepak/ (Syed Waiz Mian,J.) (Suneet Kumar,J.)