Delhi High Court
Mohan Lal @ Ranjan Mohan Bhatnagar vs The State (Nct Of Delhi) on 23 August, 2011
Author: Veena Birbal
Bench: Badar Durrez Ahmed, Veena Birbal
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.08.2011
+ CRL.A. No.350/1997
MOHAN LAL @ RANJAN MOHAN BHATNAGAR ...Appellant
versus
THE STATE (NCT OF DELHI) ...Respondent
Advocates who appeared in this case:-
For the Appellant : Mr Ajay Verma, Advocate For the Respondent : Ms Richa Kapoor, APP CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes VEENA BIRBAL, J
1. The present appeal is directed against the judgment dated 02.09.1997 passed by the learned Additional Sessions Judge, New Delhi, arising out of FIR No. 77/1989, P.S. R.K. Puram, under CRL.A. No.350/1997 Page 1 of 27 Section 302/307 IPC wherein the appellant has been convicted for the offence punishable under Section 302 for having committed the murder of his minor son, namely, Aditya and under Section 325 IPC for having caused grievous hurt to his wife Rajeshwari (PW-
7). The appeal is also directed against the order on sentence dated 03.09.1997 whereby the appellant has been sentenced to undergo life imprisonment and to pay a fine of ` 2000/- and in default of payment of fine to further undergo RI for six months under Section 302 IPC and is also awarded RI for 3 years and fine of ` 500/- and in default of payment of fine to further undergo RI for one month under Section 325 IPC.
2. The case of the prosecution is based upon the statement Ex.PW-1/A of Sohan Lal (PW-1) brother of appellant to the police wherein it is alleged that his sister Sarita (PW-2) and elder brother Mohan Lal i.e., appellant were residing at quarter No. 423, Sector- 7, R.K. Puram. His sister was in a government job and the said quarter was allotted to her. The marriage of the appellant Mohan Lal was solemnized in December 1984 with Rajeshwari (PW-7), a CRL.A. No.350/1997 Page 2 of 27 resident of Jaipur. They were not having cordial relations since their marriage. Due to their strained relations, Rajeshwari (PW-7) had been residing with her parents for the past two years. Her parents were not sending her back as the appellant was unemployed. Few days prior to the occurrence, Sarita (PW-2) and the complainant i.e., Sohan Lal (PW-1) went to Jaipur and brought Rajeshwari as well as her son Aditya aged 2½ years to Delhi on 19.02.1989 after speaking to her parents. Thereafter, the appellant along with Rajeshwari (PW-7) and Aditya started residing at the aforesaid quarter i.e., 423, Sector-7, R.K. Puram. It is alleged that on 23.02.1989, Sarita (PW-2) went to the house of his brother Sohan Lal for residing at Netaji Nagar. Appellant and his wife and their son Aditya remained at home. At about 12.00 midnight appellant had a quarrel with Rajeshwari (PW-7) as he was suspecting that she was having illicit relations with one Babli @ Zamil and Aditya was son of said Zamil. It is alleged that Rajeshwari (PW-7) confessed that she was having illicit relations with Zamil and thereupon the appellant Mohan Lal, his wife CRL.A. No.350/1997 Page 3 of 27 Rajeshwari and his son Aditya lay down on the bedding of his floor. It is alleged that appellant could not sleep and at about 12.00 mid night, he strangulated the throat of his son Aditya. It is further alleged that when Rajeshwari (PW-7) came for the rescue of her child, appellant picked up a thapi (which is used for washing clothes) and struck her head. Thereupon appellant locked the house leaving Rajeshwari (PW-7) and deceased Aditya there and went to the house of his brother Sohan Lal (PW-1) at Netaji Nagar and told them about the alleged incident. It is alleged that Sarita (PW-2) and Sohan Lal (PW-1) came to quarter No. 423 and opened the lock of the house where Aditya was found dead and Rajeshwari (PW-7) was groaning with pain in an injured condition. Rajeshwari (PW-7) was removed to Safdarjung Hospital whereas appellant Mohan Lal and Sarita remained at home. On the basis of aforesaid statement, FIR Ex. PW-3/A was registered against the appellant and thereupon the I.O. Inspector Gurdeep Singh (PW-26) reached the place of occurrence where the dead body of a child was lying on the floor. The crime team was called which inspected CRL.A. No.350/1997 Page 4 of 27 the spot. Necessary articles were seized from the spot by preparing necessary memos in this regard. During investigation, statements of witnesses were recorded. The appellant Mohan Lal was arrested. Statement of Rajeshwari (PW-7) and her father (PW-6) were got recorded under Section 164 Cr.P.C. by producing them before the concerned M.M. After completion of necessary formalities, a report under Section 173 Cr.P.C. was prepared and was filed before the concerned M.M.
3. Before the learned M.M. on 22.06.1999, an application under Section 328 Cr.P.C. was moved on behalf of appellant by his counsel to the effect that appellant was mentally sick and was not in a sound state of mind and a request was made to inquire about the state of mind of the appellant and for postponement of proceedings. On the said application, an order was passed by Learned M.M. for producing the appellant before Superintendent, Mental Hospital, Shahdara for medical examination. Thereupon appellant was got examined there and a report Ex.CW1/A was submitted by Dr. Baqar Mujtaba who was examined as CW1 CRL.A. No.350/1997 Page 5 of 27 before learned M.M. and thereafter vide order dated 24.02.1990, the learned M.M. held that appellant was of unsound mind and was not capable of making his defence and the proceedings of the case were postponed till further orders. Thereafter, the case was being adjourned from time to time and the medical report concerning mental status of the appellant was being called from time to time. On the receipt of medical reports from time to time and on finding that the appellant was fit to face trial, the case was committed to Sessions on 16.02.1993. On 03.02.1994, charge was framed against the appellant under Section 302/307 IPC to which he had pleaded not guilty and claimed trial and thus was tried before the learned Addl Sessions Judge, New Delhi.
4. The prosecution in all had examined 26 witnesses, out of which Sohan Lal PW-1 and Sarita PW-2 are the brother and sister of the accused. Rakesh Kumar PW-4 is the witness before whom blood sample of the deceased child and thapi were seized. Prahlad Rai PW-6 is the father-in-law of the appellant. Rajeshwari Devi PW-7 is the wife of the appellant. Smt. Sangita Dhingra, Ld. Addl CRL.A. No.350/1997 Page 6 of 27 Sessions Judge (at the relevant time learned M.M., New Delhi) recorded the statement of Prahlad Rai (PW-6) and Rajeshwari (PW-7) under Section 164 Cr.P.C. Remaining testimony relates to police and medical witnesses.
5. The incriminating evidence was put to appellant under Section 313 Cr.P.C. who denied the same and stated that present is a false case and he was an innocent person. The appellant had stated that about 4-5 months prior to the incident, he started hearing super natural voices and they used to tell him that his wife had got pregnant from one Babli @ Zamil Ahmed. He also went to Jaipur to inquire about the same. He sent his sister and brother to inquire about the same but the same was found to be incorrect. He was not mentally fit. He has not committed the murder of his son nor has he inflicted injuries to his wife. He has been falsely implicated by his wife and her father. When he was lodged in jail, he was deaf and dumb at that time. He was not mentally fit at the time of incident.
CRL.A. No.350/1997 Page 7 of 27
In defence, 5 witnesses are produced -Dr Baqar Mujtaba (DW-1), Dr. Rajesh Kaul (DW-2), Dr. Mohan Lal, CMO, Directorate of Health Services (DW-3), Dr. S.E.K. Kharkhongor (DW-4) from Central Jail Hospital, Tihar, New Delhi and Sh. A.K. Gupta, Junior Psychapric, Social Worker (DW-5).
6. Learned trial court on the basis of evidence on record rejected the defence of the accused that he was mentally unfit at the time of occurrence as such had not committed any offence in view of Section 84 of IPC. Learned Addl Sessions Judge held that the burden of proving the mental condition of the appellant at the crucial point was upon him and he had failed to prove the same and accordingly rejected the defence of insanity. On the basis of evidence on record, the learned Addl Sessions Judge had held him guilty of committing the murder of his son Aditya aged about 2½ years and also having caused grievous injuries to his wife Rajeshwari PW-7 and thereby convicted the appellant for offence under Section 302 and 325 IPC and sentenced him vide order dated 03.09.1997 as is stated above.
CRL.A. No.350/1997 Page 8 of 27
7. The amicus curiae appearing for the appellant has contended that the appellant at the time of occurrence was suffering from paranoid schizophrenia and was mentally unsound at the time of occurrence as such he could not have been convicted of any offence and was entitled to the benefit of general exception contained in Section 84 of IPC. It is contended that the evidence on record shows that before the commencement of trial the appellant was got examined by various doctors by the learned Metropolitan Magistrate in the proceedings under Section 328 Cr.P.C. and was found to be a man of unsound mind and the learned M.M. also passed an order in this regard dated 24.02.90 and the trial had commenced only when he was declared mentally fit. The appellant also produced five witnesses in defence to substantiate his stand that he was mentally unsound and the doctors opined that he was suffering from paranoid schizophrenia. Learned amicus curiae has also referred to the evidence of Sohan Lal (PW-1) and Sarita (PW-2) to substantiate that the appellant at the time of occurrence was a man of unsound mind and as such CRL.A. No.350/1997 Page 9 of 27 was entitled for the benefit of general exception contained in Section 84 of IPC.
8. The learned counsel for the State has contended that burden of proof that the appellant was of unsound mind and as a result thereof he was incapable of knowing the consequence of his act was on the defence. It is contended that under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception under Section 84 of IPC was upon the defence and the defence has failed to discharge the said burden. It is contended that nothing has been placed on record to show that prior to the occurrence the appellant was suffering from paranoid schizophrenia as is alleged. It is contended that for the first time, learned M.M. has been informed of mental unsoundness of appellant after about 4 months of occurrence and after about one month of filing of report under Section 173 of Cr.P.C. against the appellant. Prior to that no such stand has been taken. It is further contended that the conduct of the appellant after commission of the crime i.e., of having locked the room where CRL.A. No.350/1997 Page 10 of 27 incident had occurred and of concealing the weapon of offence thapi behind the door and thereafter going to the house of his brother Sohan Lal demolishes the stand of defence that appellant was a man of unsound mind at the time of occurrence. It is contended that no abnormal behavior of appellant was noticed at the time of his arrest. Further, nothing about the alleged delusion was stated during the investigation. None of his family members had stated about the delusion in the evidence during the trial. It is contended that neither the lawyer of appellant nor his relatives i.e., brother and sister took the stand of insanity at initial stages. It is contended that even if it is held that after the incident he has been found to be a patient of paranoid schizophrenia the same cannot relate back to the date of the incident. It is contended that no evidence was produced in this regard by the defence nor any treatment papers had been produced concerning the appellant prior to the occurrence. Even the application filed before the Magistrate does not give any particulars as to when the alleged ailment started. It is contended that Ld Addl Sessions Judge has rightly CRL.A. No.350/1997 Page 11 of 27 appreciated the evidence and convicted the appellant and passed the order on sentence and no interference of this court is required.
9. Rajeshwari PW-7 is the star witness of the occurrence being one of the victims. She is also the wife of the appellant and the mother of deceased Aditya. She had deposed that she was married to accused on 05.12.1984 and after the marriage appellant used to harass her and also used to give her beatings due to inadequacy of dowry. She had also deposed that the appellant was not doing any job and accused also did not wish to have any child and whenever she conceived, he forced her to go for an abortion. The deceased Aditya was born to her two years after the marriage and she gave birth to the child in her parents‟ house as she was apprehending that appellant may not force her for the abortion. On 19.02.1989, she had come to Delhi along with her son Aditya as Sohan Lal PW-1 and Sarita PW-2, brother and sister of appellant had come to her parental home at Jaipur and brought her to Delhi. She had deposed that on the night of 22.02.1989, accused quarrelled with her by saying that the son i.e., deceased Aditya was not from him CRL.A. No.350/1997 Page 12 of 27 and the appellant slapped her and at about 2.30 a.m. on 22/23.02.1989 appellant pressed the throat of Aditya and when she tried to save him the appellant killed Aditya by pressing his throat and when she cried and raised an alarm, appellant had hit thapi Ex. PW-26/D on her head due to which she fell down and became unconscious. During the trial, she also proved the blood stained clothes i.e., Pyjama Ex.P.1 and shirt Ex.P.2 and the thapi Ex.P.4 with which she was hit by the appellant and she also proved the sweater Ex.P.5, shirt Ex.P.6, necker Ex.P.7, baniyan Ex.P.8 and T. shirt Ex.P.9 being that of Aditya and she also proved the sweater Ex.P.10, pant Ex.P.11 and shirt Ex.P.12 being that of the accused which he was wearing at the time of incident. She also proved the bed sheet Ex.P.13, quilt Ex.P.14, mattresses Ex.P.15 and P.16, pillows Ex.P.17 and P.18 which were lying in the bed room at the time of incident. The evidence of injured eye witness i.e., Rajeshwari as regards the role of the appellant at the time of incident is not shaken in the cross-examination. She had stated in her evidence that the incident had occurred on 22/23.02.1989. CRL.A. No.350/1997 Page 13 of 27 Even her father Prahlad Rai (PW-6) has stated the said date of incident whereas the incident had taken place in the night intervening 23/24.02.1989. Rajeshwari PW-7 was also admitted in the hospital in the morning of 24.02.1989. DD No. PW-19/A by which the information was received at the Police Station that Rajeshwari PW-7 had been admitted in hospital was recorded on 24.02.1989. Her statement in court was recorded after 7 years of the incident. The said discrepancy in date had come due to lapse of time. Considering the totality of evidence on record, the said discrepancy is immaterial. The testimony of Rajeshwari PW- 7 finds support from post mortem report Ex. PW-8/A which shows that the cause of death was due to asphyxia following ante mortem throttling. It also finds support from MLC Ex.PW-23/A dated 24th February, 2009 of Rajeshwari (PW-7) as per which there are injuries on forehead and parietal region and the same has been opined as "grievous". The testimony of PW-7 also gets support from the CFSL report Ex.PW-26/M as per which blood group „A‟ is found on thapi Ex.P.4 as well as shirt Ex.P.12 of the appellant CRL.A. No.350/1997 Page 14 of 27 which was the blood group of deceased. The evidence on record clearly establishes that the accused has caused the alleged occurrence.
Though Sohan Lal (PW-1) and Sarita (PW-2) have not fully supported the case of prosecution despite that the case of prosecution is not demolished in view of evidence of injured eye witness which clearly proves the alleged occurrence. However, Sohan Lal (PW-1) has admitted his signature in statement Ex.PW- 1/A.
10. The only plea raised while arguing the present appeal is that at the time of the commission of the offence the appellant was a person of unsound mind as he was suffering from paranoid schizophrenia and as such was entitled to the benefit of the general exception contained in Section 84 of IPC.
11. The material provisions dealing with the contention of the appellant are as under:-
CRL.A. No.350/1997 Page 15 of 27
Indian Penal Code Section 84. 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.
Indian Evidence Act Section 105. 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.
In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat;
AIR 1964 SC 1563, the doctrine of burden of proof in a case where plea of insanity has been taken is discussed. The relevant para is as under:-
"7. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused CRL.A. No.350/1997 Page 16 of 27 was not insane, when he committed the crime, in the sense laid down 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 rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."
In Shrikant Anandrao Bhosale v. State of Maharashtra; (2002) 7 SCC 748, it is held that burden of proving the existence of circumstances bringing the case within the provision of Section 84 IPC is on the accused. What is paranoid schizophrenia has also been discussed in the said judgment. The relevant paragraphs are reproduced as under:-
"10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and CRL.A. No.350/1997 Page 17 of 27 develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but afterwards change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behavior, he is often a source of danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology, 22nd Edn.)
11. Further, according to Modi, the cause of schizophrenia is still not known but heredity plays a CRL.A. No.350/1997 Page 18 of 27 part. The irritation and excitement are effects of illness. On delusion affecting the behaviour of a patient, he is a source of danger to himself and to others."
12. The main question for consideration is whether at the time of commission of offence appellant was suffering from paranoid schizophrenia as is alleged.
13. The date of occurrence is night intervening 23/24.02.1989. The FIR Ex. PW-3/A is registered on 24.02.1989 on the statement Ex. PW-1/A of Sohan Lal PW-1, brother of accused. Nothing is stated therein about the mental condition of appellant. The statement of sister Sarita (PW- 2), who is an educated lady and at the relevant time was a Government employee, was also recorded at the time of investigation. She has also not stated in this regard. It is not their stand that they had stated about the mental condition of the accused at the time of investigation and police did not record their statement in this regard. The accused was arrested on 24.02.1989. After his arrest, he was produced before the learned M.M. It is not the stand of the defence that in the remand CRL.A. No.350/1997 Page 19 of 27 proceedings before learned MM wherein accused was produced, such a stand was taken. The charge sheet was filed against the appellant before learned M.M. on 23.05.1989. The copies had been supplied to the appellant on that day. On 07.06.1989 an application is moved by his brother (PW-1) and sister (PW-2) through counsel wherein prayer was made for engaging counsel for the appellant. Only on 22.06.1989, an application is moved by the advocate of the accused on his behalf under Section 328 Cr.P.C. wherein it is stated that appellant is suffering from mental and physical infirmities and due to the unsound state of mind he was unable to understand the proceedings. He has also lost hearing and speaking powers. Therefore, request was made for calling for the medical reports from the hospital. On the said date, the application was also moved for providing „B‟ class facilities to the appellant in Jail being a graduate. In both these applications, it is not stated that at the time of commission of offence or prior to that appellant was suffering from paranoid schizophrenia/unsoundness of mind as is alleged.
CRL.A. No.350/1997 Page 20 of 27
The wife of appellant i.e., Rajeshwari (PW-7) with whom appellant was married prior to the occurrence had denied in her cross-examination that the appellant was suffering from insanity.
The report Ex.CW1/A was proved on record by the psychologist Dr Baqar Mujtaba, CW1 before the learned M.M. while deciding the application of appellant u/s 328 of Cr.P.C. The said doctor had deposed having examined the appellant on 17.07.1989, 21.08.1989, 11.09.1989, 14.09.1989, 18.09.1989 and 20.09.1989 and also gave him many psychological tests to arrive at a conclusion whether he was suffering from mental ailment or not and if so what type of illness. After examining, the doctor gave report Ex.CW1/A as per which the appellant was found suffering from paranoid schizophrenia. Accepting that opinion the learned MM during committal proceedings, declared vide order dated 24th February, 1990 that the appellant was a man of unsound mind.
Dr Baqar Mujtaba has also appeared as a defence witness on behalf of appellant as DW-1. The said doctor has deposed that at CRL.A. No.350/1997 Page 21 of 27 the relevant time he was working in the Institute of Human Behaviour and Allied Sciences, Shahdara, Delhi and he had examined the appellant between 14.08.1989 to 29.09.1989 when the case was sent to him by the then Medical Superintendent of the hospital and after examining the appellant clinically as well as through physiological tests diagnosed him as a patient suffering from paranoid schizophrenia which is a type of mental illness and he found him totally non-communicative but co-operative. He had proved his report as Ex.DW-1/A. Thereafter, on 28.09.1990, he examined the patient again for reassessment of his mental condition. On examination, he found that appellant was still suffering from some disorder and gave his report Ex.DW-1/B. The aforesaid reports only show the mental status of appellant from 14.08.1989 to 28.09.1989 as well as on 28.9.1990 whereas the incident had occurred on 23/24.02.1989.
Dr Yogesh Kaul DW-2 who at the relevant time was working as G.D.O. in Tihar Jail has deposed having examined the appellant on 16.05.1989. He found that the appellant was not having any CRL.A. No.350/1997 Page 22 of 27 acute mental disease. He further deposed having found appellant fit to remain in Jail. The said doctor had examined the appellant much prior to examination by Dr Baqar Mujtaba DW-1. The said doctor did not find appellant suffering from any acute mental disease. The other defence witness produced by the appellant during the trial was Dr Mohan Lal DW-3. The said doctor has deposed that on 24.02.1989 he was attached to Mental ward of Tihar Jail from Mental Hospital, Shahdara. The evidence of aforesaid doctor is of no help to the appellant as he had stated that record pertaining to appellant was not available in the jail. He even did not remember whether he had examined appellant on 24th February, 1989. The other witness produced by appellant was Dr S.E.K. Kharkhongor DW-4, Associate RMO, Central Jail Hospital. He had brought medical record of appellant from 15th May, 1989 to 12th June, 1994 and proved medical reports Ex.DW-4/A and DW-4/B pertaining to appellant. Ex.DW-4/A shows medical examination of appellant on 15th May, 1989 and 26th May, 1989. As per medical examination dated 15th May, 1989, it is reported CRL.A. No.350/1997 Page 23 of 27 that patient is not speaking and is referred to psychiatrist. As per noting dated 26.05.1989 it is stated that no abnormal behaviour is reported but the patient is not speaking at all. The overall defence evidence discussed above shows that appellant had been examined for the mental condition only after filing of charge sheet against him. The reports discussed above do not show that appellant was suffering from acute mental ailment at the time of initial examination in the month of May. Thereafter, he has been examined by DW-1 from 14.08.1989 to 29.09.1989. The said doctor has opined that he was a patient of paranoid schizophrenia and treatment was given to appellant and was cured in 1994 and faced the trial of the present case. The report Ex.DW-1/A shows that he was found to be of unsound mind at later stage. Nothing has been placed on record by the defence to show that he was a man of unsound mind at the time of occurrence or that prior to the occurrence he had undergone some treatment in this regard. It is also not the case of the defence that there was a family history of appellant about this ailment. No treatment papers for unsoundness CRL.A. No.350/1997 Page 24 of 27 of mind are there prior to occurrence or at the time of occurrence. Further, his conduct after the occurrence i.e., after the incident he had locked the room from outside and in the early hours of the day had gone running to the house of his brother and brought him to his house negatives the stand of defence that he was a man of unsound mind at the time of occurrence. Neither Sohan Lal (PW-
1) nor his sister Sarita (PW-2) had stated in the evidence that appellant was of unsound mind at the time of occurrence. Sohan Lal (PW-1) in the evidence has stated that appellant sometimes used to become violent and sometimes used to behave in an unusual manner. His sister Sarita (PW-2) in cross-examination has stated that appellant used to remain away from the house for 12-13 days and when he used to return back he used to be back without clothes and shoes which he used to take with him. However, he used to say that he was alright. The allegations made are vague. No specific date and year is mentioned as to when he had behaved in that manner. The name of the person with whom he used to become violent or used to misbehave is also not stated. From these CRL.A. No.350/1997 Page 25 of 27 circumstances, inference cannot be drawn that he was suffering from unsoundness of mind at the time of occurrence as is alleged. Rajeshwari (PW-7) and her father Prahlad Rai (PW-6) have denied that the appellant was suffering from paranoid schizophrenia or was under some treatment in this regard. Dr Kamal Krishan (PW-
21) who had examined the appellant on 24.02.1989 had stated that on examination of appellant vide MLC Ex. PW 21/A, he found him conscious and oriented. He denied the suggestion of defence that appellant was not mentally sound when he examined him.
In view of above discussion, the defence has failed to discharge the burden as required under Section 105 of Evidence Act in order to avail the benefit of Section 84 of IPC. It has not been established by the defence that accused was insane at the time of occurrence nor is the evidence sufficient to throw a reasonable doubt in our minds that the act might have been committed when the appellant was in a fit of insanity.
In view of the above discussion, we dismiss the appeal. CRL.A. No.350/1997 Page 26 of 27 The appellant is on bail. His bail stands cancelled. The appellant be arrested for serving the remainder of his sentence.
A copy of the judgment along with record be sent to the learned trial court for compliance.
VEENA BIRBAL, J BADAR DURREZ AHMED, J rd AUGUST 23 , 2011 kks CRL.A. No.350/1997 Page 27 of 27