Delhi District Court
Cbi vs Shardul Vikram Tiwari on 19 November, 2025
IN THE COURT OF SPECIAL JUDGE:
PC ACT (CBI) - 04, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI.
Criminal Appeal No. 04/2025 (CNR No.DLCT11-000644-2025)
RC2212020E0007
U/s 354A(ii),354(iv), 354D of IPC
& Section 67 of IT Act
CBI,EO-III, New Delhi
Central Bureau of Investigation (CBI) ... Appellant
V.
Shardul Vikram Tiwari
S/o Sh. Hari Shanker Tiwari
R/o Pandriba Gali, Near Radhey Krishna Temple
Besides Sales Tax Office, Patna City
Bihar ........Respondent
Date of Institution : 09.07.2025
Judgment Reserved on : 01.11.2025
Date of Passing Judgment : 19.11.2025
JUDGMENT
1. This judgment shall dispose off the present criminal appeal under Section 419(2) of BNSS (corresponding to Section 378(2) CrPC ) preferred by the appellant/CBI against the judgment dated 29.03.2025 (hereinafter referred as "the impugned judgment") whereby the respondent herein has been acquitted by Shri Deepak Kumar-II, Ld. CJM, Rouse Avenue District Courts, New Delhi in Case No. 01/2021 (FIR/ RC No.221/2020/E-0007 under Section 354A(ii)/354A(iv) /354D IPC Page 1/31 and Section 67 IT Act, PS EOU-IX/EOU-III/CBI/ND in case titled 'CBI V. Shardul Vikram Tiwari' by giving him benefit u/s 84 IPC.
2. It is, inter alia, pleaded in the present appeal that the present FIR was registered on 08.09.2020 under Section 509/354A/354D IPC and 67 of IT Act,2020 against unknown user of FB profile 'Eightin Male', on written complaint of victim A. It was alleged that during the the period between 30.07.2019 to 08.07.2020, an anonymous person sent obscene vulgar messages to the complainant (victim) through Facebook Messenger using Facebook ID 'Eightin Male' URL http://wwe.facebook.com/eightin.male.3 and tried to get into sexual conversation. The copy of FIR is annexed as Annexure P-1 2.1 During the investigation, it transpired that accused Shardul Vikram Tiwari (respondent herein) was operating the afore-said anonymous Facebook profile created on 05.10.2018 and linked to Gmail.ID [email protected]. The mobile phone number 9470074357 was registered with this Facebook account. The further probe disclosed that it was registered in the name of Uma Kumari, mother of the respondent, but the SIM was being used by the respondent. Further, another mobile no.7012423421 Page 2/31 was also found to be used by respondent and registered in his name. During the investigation, house search of accused (respondent) was conducted and both the mobiles and SIM Cards were recovered. During the said search, accused (respondent herein) accessed Facebook profile and associated Messenger Chats which were seized under Section 27 of Indian Evidence Act. The chat had sexually explicit content directed towards victim during July 2019 to July 2020. The said material disclosed accused (respondent herein) repeatedly attempted to initiate personal and sexually charged conversations with her through deceptive means.
2.2 It is further pleaded that based on the said findings, chargesheet and supplementary chargesheet under the relevant sections was filed against the accused Shardul Vikram Tiwari/Respondent. Copy of the chargesheet is annexed as Annexure P-3 and P-4 respectively. However, after the trial, the accused/respondent has been acquitted by the Ld. Trial Court vide impugned judgment dated 29.03.2025.
3. That feeling aggrieved, the appellant/CBI has assailed/ challenged the impugned judgment on the following grounds:
Page 3/31(i) That Ld. Trial Court erroneously extended benefit of Section 84 IPC to accused though the section contemplates a condition of insanity and not merely medical insanity. In this regard, reliance is placed upon judgment of Hon'ble Supreme Court in case titled Dahyabhai Chhaganbhai Thakkar V. State of Gujarat, AIR 1964 SC 1563.
(ii) That Ld. Trial Court erred in concluding that accused was of unsound mind at the time of commission of offence as it based its conclusion on prescriptions and medical notes of Dr. N.S Moni and Dr. R. Moni Vasakan who were not examined as witnesses nor their documents were proved in accordance with Indian Evidence Act. The documents relied upon by the Ld. Trial Court are inadmissible and cannot form basis of finding of legal insanity. In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court in case titled Surendra Mishra V. State of Jharkhand (2011) 11 SCC 495.
(iii) That Ld. Trial Court relied upon the testimony of DW-1 which is misplaced and legally flawed. The eccentrics as testified by DW1 do not constitute legal insanity unless such behavior is corroborated by expert medical evidence to establish it. Reliance is also placed upon judgment of Hon'ble Supreme Court in case titled Ratan Lal V. State of M.P AIR 1971 SC 778.Page 4/31
(iv) That Ld. Trial Court further failed to appreciate the statement of accused (respondent) under Section 313 Cr.P.C in which he admitted to be self-sufficient during the relevant period. He was cooking for himself, purchasing groceries online etc. These admissions directly contradict the plea of cognitive incapacity and support the prosecution case that accused was in full possession of his mental faculties during the relevant period.
(v) That Ld. Trial Court also failed to apply the test to invoke Section 84 IPC which clearly establishes that the accused due to unsoundness of mind was incapable of understanding the nature and quality of the act or that what he was doing was wrong or contrary to law. The Ld. Trial Court instead of applying the said standard, has relied upon unproven medical record to grant the accused protection of Section 84 IPC. Thus, the findings given by the Ld. Trial Court are perverse, unsupported by admissible evidence and deserve to be set aside.
(vi) That the reliance placed upon by the Ld. Trial Court on Section 84 IPC is misplaced in the absence of proved contemporaneous medical records, lack of expert psychiatric testimony and contradictory statements of accused.Page 5/31
4. In support of the pleas, Ld. Public Prosecutor for appellant/CBI further argued that the accused/respondent herein has not challenged the findings of the Ld. Trial Court whereby, the accused/respondent has been found guilty for the offence charged under Section 354A(ii)/354(9v)/354D IPC and Section 67 IT Act. The said finding on merits, thus, has attained finality.
4.1 It is further argued that they have challenged the second part of the impugned judgment of the Ld. Trial Court whereby accused/respondent herein has been given the benefit of insanity at the time of commission of offence in terms of Section 84 of IPC. It is further argued that the initial documents concerning medical condition showing him to be 'legally insane' at the time of commission of offence were never proved by the accused/respondent herein despite the onus of the same being upon him. The documents referred as Ex.DW3/2, Ex.DW3/3, Ex.DW3/4, Ex.DW3/5 and Mark DW3/A, all are not legally proved as the treating doctor/author was never produced before the Ld. Trial Court.
4.2 It is further argued that the only medical professional examined by the accused is DW-3 namely Dr. Anant Kumar Verma who in the cross-examination admitted to the fact that no previous medical prescription/ treatment documents were shown Page 6/31 to him during the entire period of treatment starting with effect from 20.01.2021 till the year 2024. He, for the first time, came across the said documents while deposing before the Court. Thus, the entire medical history and the claim of the claim of the respondent herein suffering from the mental disease during the relevant period from July 2019 till July 2020 is unproved. The medical documents proved by DW3 pertain to the period after 20.01.2021 and further after the house-search of the accused/respondent on 09.01.2021.
4.3 It is further argued that the accused/respondent herein entered into the witness box before the Ld. Trial Court as DW5 and admitted in the cross-examination that during the relevant period of 2019-2020, he used to take care of his own and did not seek any help from his relatives and other known persons. He further used to cook for himself as well as do the necessary daily chores which reflects that his mental health during the relevant period being perfectly in order. The only fact which has been proved is the unusual behaviour as deposed by the landlord of accused/respondent herein and the said fact alone does not make out the case of legal insanity under Section 84 of IPC. The onus of proving the said defence was upon the accused/respondent herein and he was under the obligation to prove that he was never aware about the consequences of his acts of sending obscene Page 7/31 messages to the victim/complainant or the said act being wrong or contrary to the law. The accused has failed to discharge the onus placed upon him.
4.4 It is further argued that the Ld. Trial Court has committed illegality in giving the benefit to the accused/respondent herein of suffering from legal insanity without proof of any such medical document.
5. Per contra, Ld. Counsel for the accused/respondent herein argued that the impugned judgment is legally correct and no infirmity is there in the entire judgment. The benefit accorded to accused/respondent herein under Section 84 of IPC is as per the correct appreciation of facts and circumstances. He further argued that the said benefit should have been given to the accused/respondent herein during the investigation stage as the Investigating Office (I.O) was apprised of the said medical condition and was even provided with the relevant medical documents. But, the same were never taken on record. No investigation was conducted in this regard despite it being the legal/bounden duty of the Investigator as enumerated by the Hon'ble Supreme Court in Sidhapal Kamala Yadav V. State of Maharashtra (2009) 1 SCC 124.
Page 8/316. In rebuttal, Ld. Public Prosecutor for CBI argued that no such plea was ever raised during the investigation and as per Section 105 of Indian Evidence Act, the onus of proving the defence remains upon the party asserting it. The said onus was upon the accused/respondent herein of proving the fact that his case is covered within the General Exceptions of Indian Penal Code, which he has failed to discharge.
7. Heard and considered the record.
8. The case in hand came to be registered consequent to the lodging of complaint by the victim 'A' on 08.09.2020. The FIR was registered for the offence under Section 354,355, 354D, 509 of IPC and 67 of I.T Act 2000 against the unknown user of FB profile "Eightin Male". The investigation was carried out which led to the identification of said user id of Facebook as well as the source of the internet availability through which the said user id was accessed. Two mobile numbers i.e 9470074357 and 70124 23421 were found to be activated through which the I.P address of the said Facebook profile was accessed. The said mobile phones were thereafter found to be connected to the accused/ respondent herein. The house-search of the accused/respondent herein was carried out, which led to the Page 9/31 recovery of mobile phone in question as well as the above- referred two SIM cards.
8.1 The said Facebook profile was also operated upon consequent to the disclosure of password by accused/respondent herein and rrelevant messages were retrieved vide memorandum/panchnama Ex.PW4/B. 8.2 On the basis of said material, the accused/respondent came to be chargesheeted for the above-referred offences and Ld. Trial Court after trial found the case of the prosecution on merits to be proved against him. The said finding on merits concerning the allegations is not challenged either by the accused / respondent or by the prosecution and thus, has attained finality. The arguments addressed by accused/respondent herein before this Court on the merits of the said case are thus irrelevant.
8.3 The only ground on which the present appeal has been preferred by the prosecution is the acceptance of the plea of insanity and thereby benefit being accorded to the accused/respondent herein under Section 84 of IPC. It is the case of the prosecution that the said benefit has been accorded despite the accused/respondent having failed to discharge the onus placed upon him in terms of Section 105 of Indian Evidence Act.
Page 10/319. Before discussing the merits of the pleas advanced by the prosecution, the legal position as to the interpretation of 'legal insanity' as defined under Section 84 IPC and the manner in which the said defence has to be proved needs to be appreciated.
The legal position qua the interpretation of the benefit of unsoundness of mind accorded to the offender under Section 84 IPC is well settled through series of judgments of Hon'ble Supreme Court. No doubt, the averment of the CBI is correct to the extent that the onus is upon the accused/respondent herein in order to claim the benefit. He has to show that he was suffering from legal insanity which hindered his mental/cognitive faculties to judge the nature of the act alleged against him or the act done by him being either contrary to the law or being wrong. The mere fact that he was suffering from some kind of mental illness alone would not give immunity to the offender under Section 84 of the IPC.
9.1 The Hon'ble Supreme Court in Devidas Loka Rathod . V. State of Maharashtra (2018) 7 SCC 718 explained the said provision and its interpretation vis-a-vis under Section 105 of Evidence Act as under :
11. Section 84 of the IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, Page 11/31 or what he is doing is either wrong or contrary to law.
But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 8495, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602, as follows :
"19. ........Once, a person is found to be suffering from mental disorder or mental deficiency, 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 seek resort to the general exceptions from criminal liability."
12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal vs. State of Madhya Pradesh, (1970) 3 SCC 533, as follows:
"2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this ties on the accused. In D.G. Thakker v. State of Gujarat it was laid down that "there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down Page 12/31 by Section 84 of the Indian Penal Code, the accused may rebut it by placing before the Court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings".
13. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh vs. State of U.P., (1990) 3 SCC 190."
10. Thus, it is apparent that the onus upon the accused for proving the legal insanity can be discharged by producing the evidence which probalises the plea on the standard of preponderance of probabilities. It is also clearly held that the said mental disorder or cognitive deficiency can be proved by the offender by way of appropriate documentary as well as oral evidence. The attended circumstances which proceeds the commission of offence, during the commission of offence and the subsequent one, are also the relevant facts for reaching to any such conclusion. Thus, the plea of the prosecution that legal insanity only can be proved through relevant medical documents alone is not correct interpretation of the law. The medical documents can never give the opinion that the person suffering from any such mental disease was incapable of knowing the nature of the act, or what he is doing is either wrong or contrary Page 13/31 to the law. The said finding has to be arrived by looking into all the circumstances including the conduct of the accused/respondent herein of the relevant period i.e. prior to the commission of offence as well as the subsequent period as well as the medical documents.
10.1 Now coming to factual matrix concerning the said plea in the present case in hand. The issue of medical records concerning mental illness of accused of the relevant period produced by the accused and their purport also requires consideration. The sole treating doctor examined by the accused is DW-3 Dr. Anant Kumar Verma. The medical record proved by him concerning the treatment are Ex.DW3/1 ( collectively).
10.2 As far as the said medical records are concerned, there is no challenge by the prosecution and the only issue raised qua the said medical records is that the accused for the first time approached the said doctor on 20.01.2021 i.e around 10 days after raid of CBI at his residence. No doubt, the said averment is correct when seen in light of first prescription slip dated 20.01.2021 Ex.DW3/1 (colly), however, the contents of the said prescription which records the medical history itself raises question mark over the claim of the prosecution regarding non- proving of previous medical history. It is apparent from the said Page 14/31 prescription that the accused/respondent herein was accompanied his parents and as per the medical history recorded by DW3, he is stated to be suffering for the last two years with the following symptoms :
"Sleep......, Lost in self, Palpitation SOB, Suspicion of Harm, Hearing Imaginary Voices ........."
10.3 DW-3 while deposing further admitted to the fact that he was informed about the previous medical condition which stands corroborated with the above-referred noting. Though in the cross- examination, he admitted to the fact that no information was given to him regarding his previous treatment. The mere non- providing of the previous treatment records do not take away the factum of reporting of previous medical history and symptoms for the last two years , on the date of examination i.e 20.01.2021. He even denied the suggestion that no such previous information of treatment was given to him or he was not suffering any such alleged disease prior to starting of treatment. Thus, the version of DW3 goes on prove the fact that even prior to 20.1.2021, the accused/respondent was facing mental illness issues . He was facing the said mental issue having the symptoms of hearing imaginary voices, suspicion of harm and lost in sleep for the last two years when he was for the first time examined by DW3. Therefore, the argument of CBI regarding the said medical Page 15/31 treatment record being created one after the search of the residential premises of the accused does not appear to be correct.
11. Now, coming to the crux of the appeal in the present case regarding non-proving of other contemporaneous medical records Ex.DW3/2 to Ex.DW3/5 and Mark DW3/A. No doubt, the concerned treating doctors who attended the accused during the relevant period w.e.f July 2019 till January 2021 were never examined by the accused before the Ld. Trial Court despite the onus being upon him. However, the issue to be seen as to whether in the said backdrop, the averment of CBI regarding non- proving said previous medical records is correct or not.
11.1 The said previous medical records were for the first time put to DW-3 Dr. Anant Kumar Verma who categorically stated that the said records were never shown to him except the prescription slip of Dr Nitish Kumar Ex.DW3/2. Subsequently, the said records were referred and identified by accused while being examined as DW5. He apart from identifying the said medical records further explained the contours of the same. No objection was taken by the prosecution as to the mode of proof of the said medical records as referred by DW5. So, the issue is as to whether the said medical records have remained unproved due Page 16/31 to non-examination of authors of the documents. The answer to the same lies in negative.
11.2 The said issue regarding proof of documents and objection qua its mode of proof has been dealt with and discussed by the Hon'ble Delhi High Court in case titled Om Prakash V. CBI, Crl. Appeal No. 134/2016 & Connected Matters, Decided on 5 th September 2017 by relying the judgment of Hon'ble Supreme Court in Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. (2003) 8 SCC 752 the relevant part of judgment of Hon'ble Delhi High Court in Para 5.11 is reproduced hereunder :
"5.11. Legal position on the point is thus well settled that is if the document is otherwise inadmissible for want of a certificate or any other requirement of law, it being exhibited in the course of trial does not make the document admissible in law and though an objection as to the mode of proof can be waived off and should be taken at the first instance, however the objection as to the admissibility of a document which goes to the root of the matter can be taken at any stage. Supreme Court in the decision reported as R.V.E. Venkatachala Gounder (supra) held:
"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the Page 17/31 above-said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. 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 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 Page 18/31 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. In the first case, acquiescence would be no bar to raising the objection in a superior court."
12. It is thus, clear that any objection as to the mode of proof has to be taken when it is tendered by the party in evidence. Where the opposite party does not dispute the objection regarding mode of proof, it is deemed that the said objection is waived off. In the light of the said reasons, the objection by the prosecution qua admissibility of documents relied upon by DW5 as Ex.DW3/2 to Ex.DW3/5 is without any legal basis and Ld. Trial Court rightly relied upon the same in arriving at the conclusion . As far as document Mark DW3/A which is a photocopy, the said document though cannot be considered being hit by Section 64 of Indian Evidence Act and no permission being sought for secondary evidence. The said documents i.e Ex.DW3/2 to Ex.DW3/5 goes on prove the cognitive faculties being hampered and other mental issues were faced by the accused/respondent herein during the relevant period.
12.1 The first treatment documents are that of Dr. N.S Moni, Consultant Psychiatrist, Coimbatore when he diagnosed Page 19/31 accused/respondent herein on 11.12.2019. The treatment was continued there till end of December 2019 and thereafter, accused/respondent herein shifted back to his home -town, Patna, Bihar where the initial treatment was done by Dr. S.R Bairoliya vide document Ex.DW3/4 (collectively). Though the treatment given by the said doctor concerns 'Jaundice', however, the contents of the certificate issued by him dated 30.12.2020 again goes on to corroborate the mental illness condition of the accused/respondent herein.
It was opined by the Dr. S.R. Bairoliya that though the patient has been cured from Jaundice, but he is feeling depression for which he was advised to consult Neuro-physician. Accordingly, the accused/respondent visited Dr. Nitish Kumar, Consultant Neurologist who examined him vide prescription slip Ex.DW3/2 dated 05.01.2021 well before the raid of CBI. During the initial examination, again the symptoms of mental illness were noted down and the patient being not in complete senses. He was accordingly advised to consult Psychiatrist Dr. Anant Kumar Verma. In this manner, the respondent herein came to visit Dr. Anant Kumar Verma, DW-3 on 20.01.2021. The said series of medical records which admittedly pertain to the period prior to the search at his house and goes on to prove that he indeed was suffering from certain kind of mental illness for which regular treatment was being given to him.
Page 20/3113. The next aspect to be seen herein is as to whether the said mental illness for which regular treatment was being given to the accused/respondent herein was of such a degree that rendered him incapable to know the nature of the act or the said act being either wrong or contrary to the law.
13.1 To prove the said factual aspects, the defence relied upon the testimonies of DW-1 S.Kalidasan, the landlord where the accused/respondent was residing while he was employed at Palakkad, Kerala, DW-2 Hari Shanker Tiwari, father of accused/respondent himself and lastly DW-5, the accused/respondent himself.
13.2 The Ld. Trial Court has rightly placed reliance upon the said oral testimonies of the above-referred witnesses for coming to the conclusion by accepting the claim of 'legal insanity'.
13.3. DW-1 S.Kalidasan had rented out one room set of his house to the accused/respondent in April 2019 as the accused was employed with FCI at Palakkad, Kerala. He further deposed that after some time, he noticed that the accused was not going to his office and used to remain all the time at his house. He only used to come downstairs to pick the newspaper. Further, he deposed that accused reported about certain unusual knocking at his door Page 21/31 in the night or calling the police at 100 number for reporting unusual incidents. He further deposed about the fact that after noticing the said abnormal behaviour, he got him checked with local doctor who advised that the accused was not suffering from any disease and referred him to Psychiatrist. Accordingly, his parents were apprised about the advice of doctor of accused/respondent being required to be treated by a Psychiatrist and in January 2020, the parents came there and the accused/respondent left their accommodation.
All the said facts of unusual behaviour, not going to the office and remaining all the time in the rental accommodation or he having taken the accused/respondent to the local doctor after abnormal behaviour and the doctor having advised him for treatment from a Psychiatrist are all unrebutted and unchallenged. CBI never questioned the witness on the said facts. The fact of the said doctor's advice being communicated to the parents and the parents having taken along the accused/respondent in January 2020 is also unrebutted and unchallenged by the CBI. Thus, the version of DW-1 too goes on prove the fact that accused/respondent was not within his senses and he kept on complaining about unusual incidents as well as reported unusual behaviour during the relevant period from July 2019 till January 2020.
Page 22/3113.3 Next is the version of DW-2 Hari Shanker Tiwari , who is the father of accused/respondent herein. He too corroborated the version of DW-1. He deposed as under after receiving call from the landlord/DW1:
"On receiving the telephonic message from the landlord, I alongwith my wife immediately visited my son at Palakkad to his rental accommodation. At that time my son failed to recognize us. He was found lying in unconscious condition in his rental accommodation. We got medically checked accused/my son to a local dotor namely Dr. M.S Mony. The doctor advised us that the accused/my son was in severe depression and advised that about six months treatment was required. We had also taken advise from Dr. R. Manivaskan at Coimbatore. At Palakkad we had language and staying difficulty, so we decided to return to our native place at Patna in February2020."
13.4 The said factual aspect of they having immediately visited their son at Palakkad after receiving the call from DW1 somewhere in January 2020 and their son having failed to recognize them or lying in unconscious condition is neither challenged or rebutted in the cross-examination by the CBI. The said facts too corroborate the claim of accused .It goes on to show that his cognitive faculties were severely affected and he was not even able to recognize his parents when they visited him in January,2020. He further deposed that in the year 2019 i.e at the time of alleged incident, they had no conversation with their son. This is same period when the obscene message were sent to victim 'A' through the profile connected to respondent herein .
Page 23/3113.5 The last version is that of DW-5( the accused/respondent herein) and much stress has been laid by CBI on the responses given by him in the cross-examination regarding performance of daily chores by him during the relevant period. It is the case of the CBI that accused admitted in the cross-examination that during relevant period from July 2019 to July 2020, he used to cook himself and sometimes used to go outside for eating or sometimes he used to have meals in his office premises at Palakkad. As far as the response of DW-5 having meals at his office premises at Palakkad, Kerala is concerned, it is an incorrect fact when seen in the light of consistent version given by DW-1 as well as DW-2, which is not disputed .
13.6 DW-1 in clear terms deposed that some time after the accused moved to the rental accommodation, he stopped going to his office and used to remain at rental house. He ultimately left the said rental accommodation in January 2020. Similarly, DW-2 too deposed that his son has been dismissed from his service due to his continuous absence. Thus, there was no question of visiting the office for taking meals by accused/respondent. As far as cooking food of his own or doing other daily chores is concerned, the said fact alone cannot be the deciding factor for deciphering the extent of medical illness or its Page 24/31 effect on the mental faculties of the accused/respondent at the relevant time.
14. Another aspect which needs to be considered herein is the role of the Investigator in such time of situation when he comes across such information about the offender . No doubt, the onus of proving the defence under Section 105 of Indian Evidence Act is upon the accused, however, in case such defence is brought forth to the notice of Investigating Officer during investigation, then the same cannot be brushed under the carpet.
14.1 In the present case in hand, it has been proved on record through the version of DW-2 that mental condition of the accused as well as the medical record were brought to the notice of I.O/PW-8 Pooja Muvel. The documents were even handed over to her by father of the accused. However, after inspection of the said documents, the I.O returned the same back to him.
The role of an honest Investigating Officer is not only to ensure the prosecution of offender, but to ensure that all the relevant facts having any bearing on the outcome of the case are investigated and brought on record. The moment the said claim was raised by the father of the accused/respondent herein which by no stretch of imagination can be said to be an imaginary Page 25/31 claim, the onus shifted from the Investigator to investigate the said fact so as to rule out the possibility of any unjust prosecution.
14.2 The Hon'ble Supreme Court in case titled Bapu @ Gajraj Singh V. State of Rajasthan (2007 ) 8 SCC 66 discussed the very same concept and explained the duty of honest Investigator as under:
"8 .... The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has ot be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors."
14.3 Thus, in the present case, it has been rightly observed by the Ld. Trial Court that despite the availability of material concerning the mental illness and legal insanity of the accused, the said aspect was never considered and it creates a serious infirmity in the case of the prosecution.
15. The last aspect to be considered is the relevance of circumstances i.e circumstances prior to the occurrence, during the occurrence and subsequent to the offence as has been highlighted by the Hon'ble Supreme Court in Devidas Loka Page 26/31 Rathod (supra) case. In the present case in hand, the circumstances under which the present case came to be registered on 08.09.2020 and conduct of the accused subsequent to the alleged delivery of obscene messages. As has already been observed, that on merits it has been proved on record that the obscene messages were delivered from the Facebook id. connected to the accused/respondent herein. However, his subsequent conduct as is reflected from search list Ex.PW4/A and memorandum/panchnama Ex.PW4/B corroborate his plea of mental illness and the said mental illness falling within the purview of legal insanity as defined under Section 84 of IPC.
15.1 Admittedly, as per the record the last set of obscene messages to the victim were delivered in July 2020, but despite the lapse of more than six months thereafter the accused/respondent herein on the day of search i.e. 09.01.2021 was still in possession of the same mobile set having two numbers i.e 9470074357 and 70124 23421 in his possession which were used for delivering the obscene messages. Further, apart from the possession of the mobile phone as well as two SIM cards, the concerned Facebook id 'Eighin Male' was also in operation and the same was operated upon by the accused under the directions of CBI on 09.01.2021. The obscene messages were still available in the said id. which were accordingly downloaded Page 27/31 and proved on record vide printouts Ex. PW-4/B ( collectively). All the said factors go on to prove that no effort was made by the accused/respondent herein right since the inception (around July 2019) when he started delivering the obscene messages to ever delete the said messages or delete the profile. No effort was made by him to either destroy the said handset, SIM Cards used for accessing the above-referred Facebook id till 09.01.2021 when the same were recovered. The said subsequent conduct of the accused also probablises his defence of suffering from mental illness and being not aware about the nature of the act or it being wrong or contrary to the law.
16. It has already been discussed that during the period of offence w.e.f July 2019 till July 2020 the accused was under
severe depression and not in his senses as has been proved through the oral testimonies and medical records. The said fact gets further fortified from the record through the version of DW2 (father of accused). He deposed that his son has been dismissed from service due continuous absence from the duty. DW5 too deposed that his father received a phone call from his office informing his termination from service. The official further informed that publication in this regard was published in two daily newspapers vide Mark DW5/A. Both the said facts are not challenged and it goes to prove the plea of insanity of accused .Page 28/31
Due to his mental condition he never participated in the enquiry proceedings which forced the department to act. The said order was only communicated to his father and not to the accused, which again shows that even department was aware of the mental condition of the accused and due to this reason the communication was made to his father. All these facts reflects how a young person far away from his family in unfamiliar conditions and also having the language barrier ,went into severe depression , which severely affected his cognitive faculties and it ultimately his dismissal from service. But unfortunately none of these facts were investigated by CBI in its eagerness to prosecute the accused after finding out his identity. The easy cracking of the case should have prompted the Investigating Officer to delve deeper into the circumstances, but she failed to do so.
16.1 Now coming the judgment relied upon by CBI in Surender Mishra ( Supra) by arguing that medical evidence alone is relevant for deciding the plea of insanity. It is the incorrect interpretation. The relevant part of the judgment is reproduced hereunder which shows how it goes against them:
"Next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of Page 29/31 the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him."
16.2 In the present case in hand too, the behavior of the accused/respondent in not putting any effort to destroy or conceal the evidence against him till it was recovered by CBI on 09.01.2021 shows he was having no knowledge about his act to be wrong or contrary to law. The other judgments relied upon by CBI are not applicable being distinguishable on facts .
Page 30/3117. In view of the above observations, I am of the considered opinion that there is no legal infirmity or error in the impugned judgment which calls for any interference. Through the admitted material the respondent has been able to discharge the onus on the standard of preponderance of probabilities. Accordingly, the appeal filed by the CBI stands dismissed.
TCR be sent back with a copy of this order.
Digitally
Appeal file be consigned to Record Room. signed by
GAGANDEEP
GAGANDEEP SINGH
SINGH Date:
2025.11.19
15:09:28
+0530
Announced in the open Court (GAGANDEEP SINGH)
on 19.11.2025 Special Judge, PC Act, CBI-04
Rouse Avenue District Courts,
New Delhi
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