Madras High Court
Vijay Pratap Singh vs State Represented By
Author: P.N.Prakash
Bench: P.N.Prakash, R.N.Manjula
Crl.A. No.451 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 07.10.2021
DELIVERED ON 28.10.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Crl.A.No.451 of 2018
Vijay Pratap Singh Appellant
vs.
State represented by
The Inspector of Police
Kalpakkam Police Station
Kanchipuram District
(Crime No.241 of 2014) Respondent
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 09.04.2018 passed in S.C.No.242 of
2015 on the file of learned Additional District and Sessions Judge,
Chengalpet.
For appellant Mr.C.R.Malarvannan
For respondent Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
Amici Curiae 1. Mr. Sharath Chandran, Advocate
2. Mr. Rajnish Pathiyil
Senior Panel Counsel and
Special Public Prosecutor for
Enforcement Directorate
appointed to represent CISF
1/54
https://www.mhc.tn.gov.in/judis/
Crl.A. No.451 of 2018
JUDGMENT
P.N.PRAKASH, J.
This criminal appeal arises out of a judgment and order of conviction and sentence dated 09.04.2018 passed by the learned Additional District and Sessions Judge, Chengalpet, in S.C. No.242 of 2015.
2 The prosecution story runs thus:
2.1 The appellant was working as a Head Constable in the Central Industrial Security Force (for brevity “the CISF”) and was posted in the Kalpakkam Atomic Power Plant during October 2014. On 08.10.2014, around 4.00 a.m., he reported to duty, collected his weapons, viz., a 9 mm.
carbine sub-machine gun (MO-1), 2 magazines and 60 numbers of 9 mm. bullets from the armoury and was supposed to board the CISF bus for getting dropped at the duty point. Around 4.50 a.m., the CISF personnel who were changing shifts, heard a noise followed by sudden sounds of firing in the barracks which was in the first floor. Almost immediately, they saw the appellant coming down the staircase with his weapon. Before anyone could realise what had happened in the barracks, the appellant opened fire randomly, which resulted in the death of Subburaj (D2), Head Constable and Ganesan (D3), Assistant Sub-Inspector and injuries to 2/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 Govardhana Prasad (not examined) and Pratap Singh (PW-19), Assistant Sub-Inspector of Police, who were standing near the parade ground. After indiscriminately opening fire, the appellant started pacing up and down the parade ground, frequently placing the weapon on the guard of honour platform and then re-arming himself. Those persons who were then around the appellant, feared to go anywhere near him. While so, Shoba (PW-4), Inspector of Police, CISF, who was on her morning walk in the parade ground, heard the firing noise and proceeded to the spot. She confronted the appellant face to face and ordered him to lay down the weapon.
2.2 On her orders, the appellant meekly laid down the weapon and surrendered. He was taken into custody by the CISF personnel. When the CISF personnel went to the barracks in the first floor, they found Mohan Singh (D1), Head Constable, dead.
2.3 All the aforesaid five CISF personnel were rushed to the Department of Atomic Energy Hospital, Kalpakkam, where Mohan Singh (D1), Subburaj (D2) and Ganesan (D3) were declared as 'brought dead' by Dr.Ezhilarasan (PW-33) vide Accident Register copies Exs.P22, P23 and P24 pertaining to Mohan Singh (D1), Subburaj (D2) and Ganesan (D3), respectively.
3/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 2.4 Dr.Ezhilarasan (PW-33) examined Pratap Singh (PW-19), who had sustained gunshot injuries and Govardhana Prasad, who had suffered a fracture while trying to flee from the line of fire, and after making entries in the Accident Registers (Exs.P25 and P26), he referred them to Chettinad Hospital and Research Institute, Kelambakkam, for further treatment.
2.5 On a complaint (Ex.P1) lodged by Manikandan (PW-1), Head Constable, CISF, who was on patrol duty at the relevant point of time, Chandrasekaran (PW-36), Sub-Inspector of Police, E4 Kalpakkam Police Station, registered a case in Crime No.241 of 2014 on 08.10.2014 at 07.00 a.m. for the offences under Sections 307 and 302 IPC against the appellant and prepared the printed First Information Report (Ex.P31), which reached the jurisdictional Magistrate at 12.05 p.m. on the same day, as could be seen from the endorsement thereon.
2.6 Investigation of the case was taken over by Rajangam (PW-39), Inspector of Police, Kalpakkam Police Station (for brevity “the Investigating Officer”), who went to the place of occurrence and prepared the observation mahazar (Ex.P2) and rough sketch (Ex.P41) in respect of the place where Mohan Singh (D1) had fallen.
2.7 Similarly, the Investigating Officer (PW-39) prepared an observation mahazar (Ex.P5) and rough sketch (Ex.P42) at the place where 4/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 the other two deceased had been slain. These observation mahazars and rough sketches were prepared in the presence of witnesses N.Mohan (PW-9) and Narasingan (PW-10).
2.8 From the room where Mohan Singh (D1) was gunned down, the Investigating Officer (PW-39) recovered the following items under the cover of a mahazar (Ex.P3) in the presence of witnesses, Mohan (PW-9) and Narasingan (PW-10) on 08.10.2014 at 08.45 a.m.:
i. cotton and cloth with bloodstains (MO-5);
ii. cotton and cloth without bloodstains (MO-6); iii. pieces of cement floor with bloodstains (MO-7) and iv. pieces of cement floor without bloodstains (MO-8).
2.9 From the same room, the Investigating Officer (PW-39) also seized 4 nos. of 9 mm. empty cases (MO-9) under the cover of a mahazar (Ex.P4) in the presence of the same witnesses.
2.10 Similarly, from the place where Subburaj (D2) and Ganesan (D3) had fallen, the Investigating Officer (PW-39) seized 15 numbers of 9 mm. empty cases (MO-14) under the cover of a mahazar (Ex.P7).
2.11 Inquests over the bodies of Mohan Singh (D1), Subburaj (D2) and Ganesan (D3) were conducted by the police and the inquest reports were marked as Exs.P46, P32 and P33, respectively. 5/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 2.12 After the inquests, the bodies were sent to the Government Hospital, Chengalpet, for postmortem where Dr.Parasakthi (PW-29) performed autopsy on the bodies of all the three deceased and issued the postmortem certificates, which were marked as Exs.P21, P19 and P20, respectively. In her evidence as well in the postmortem certificates, she has noted the gunshot injuries, the entry and exit wounds in the bodies. The samples of the visceral organs from the three bodies were sent to the Tamil Nadu Forensic Sciences Department for chemical analysis and in the viscera reports, it is stated that neither alcohol nor poison was detected in any of them. After getting the viscera reports, Dr.Parasakthi (PW-29) gave her final opinions individually, stating that the deceased would appear to have died of firearm injury.
2.13 The Investigating Officer (PW-39) seized the 9 mm. carbine sub-machine gun (MO-1) that was used by the appellant under the cover of a mahazar (Ex.P9) and sent the same along with the magazines, bullets and empty cases, to the Tamil Nadu Forensic Sciences Laboratory, for expert opinion. These firearms, magazines, bullets and empty cases were examined by Baskar (PW-25), Ballistic Expert, who gave his opinion in Exs.P15 to P18, wherein, he has opined that the empty cases, viz., M.O.9 and M.O.14, 6/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 recovered from the two places of occurrence, were fired from the 9 mm. carbine sub-machine gun (MO-1).
2.14 After examining various witnesses and collecting the reports of the experts, the Investigating Officer (PW-39) completed the investigation and filed a final report in P.R.C.No.1 of 2015 in the Court of the District Munsif-cum-Judicial Magistrate, Thirukazhukundram (for short “the DM- cum-JM, Thirukazhukundram) against the appellant for the offences under Sections 302 IPC (3 counts), 307 IPC (2 counts) and 326 IPC (2 counts).
2.15 On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.242 of 2015 and was made over to the Additional District and Sessions Judge, Chengalpet, for trial.
2.16 The trial Court framed charges under Section 302 IPC (3 counts), 307 IPC (2 counts) and 326 IPC (2 counts) against the appellant. When questioned, the appellant pleaded 'not guilty'.
2.17 To prove the case, the prosecution examined 39 witnesses and marked 50 exhibits and 29 material objects.
2.18 When the appellant was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same and offered no explanation. Though no witness was examined from 7/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 the side of the appellant, two exhibits were marked in the cross-examination of the prosecution witnesses.
2.19 After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 09.04.2018 in S.C.No.242 of 2015, while acquitting the appellant of the offences under Sections 326 IPC (2 counts) and 307 IPC (1 count), convicted and sentenced him as under:
Provision under Sentence which convicted Life imprisonment and fine of Rs.4,000/-, in Section 302 IPC default, to undergo 1 year rigorous imprisonment (3 counts) for each count.
10 years rigorous imprisonment and fine of Section 307 IPC Rs.3,000/-, in default, to undergo 1 year rigorous (1 count) imprisonment 2.20 The aforesaid sentences were ordered to run concurrently.
Challenging the aforesaid conviction and sentences, the accused has come up to this Court by way of the instant appeal.
3 Heard Mr.C.R.Malarvannan, learned counsel for the appellant and Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor, appearing for the respondent State and Mr. Sharath Chandran and Mr.Rajnish Pathiyil, learned Amici Curiae.
8/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 4 At the outset, it is necessary to notice from the record that the prosecution has proved the following facts beyond any scintilla of doubt:
i. the appellant was working as a Head Constable in the CISF in the Kalpakkam Atomic Power Plant;
ii. Mohan Singh (D1), Subburaj (D2), Ganesan (D3) and Pratap Singh (PW-19) were also CISF personnel; iii. Mohan Singh (D1), Subburaj (D2) and Ganesan (D3) died due to gunshot injuries;
iv. Pratap Singh (PW-19) sustained bullet injuries; and v. The bullets were fired from the sub-machine gun (MO-1), which is a CISF weapon.
5 Mr. Malarvannan, learned counsel for the appellant, prefaced his arguments by submitting that the evidence on record against the appellant that he opened fire and caused three deaths and injuries to two, appears watertight and indefensible. However, he submitted that the Court below had brushed aside the medical reports of the appellant which would clearly establish that the appellant suffered from mental illness which would bring his case within the general exception contained in Section 84 IPC.
6 We carefully perused the evidence on record in order to find out whether the prosecution has proved the foundational facts.
6.1 Sarpathy (PW-13), Head Constable, CISF, has, in his evidence, stated that on 08.10.2014, he was in the CISF armoury in D.A.E., 9/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 Kalpakkam, when the appellant reported to duty and collected a 9 mm. carbine machine gun with two magazines, after signing in the arms issue register. The arms issue register was marked as Ex.P.10.
6.2 Mahendra Singh (PW-2), Constable, CISF and Samiran Shah (PW-3), Constable, CISF, have testified that in the early morning of 08.10.2014, they were sleeping in the barracks, which is in the first floor near the parade ground; in the same barracks, Mohan Singh (D1) was also sleeping; around 4.45 a.m., the appellant came, woke up Mohan Singh (D1) and asked him as to why he is abusing him; when Mohan Singh (D1) retorted, the appellant opened fire on Mohan Singh (D1). We notice that it was not the case of Mahendra Singh (PW-2) and Samiran Shah (PW-3) that there was a live altercation between Mohan Singh (D1) and the appellant prior to the incident. On the contrary, the consistent version of Mahendra Singh (PW-2) and Samiran Shah (PW-3) is that Mohan Singh (D1) was asleep when the appellant woke him up and questioned him and then opened fire. The defence was not able to make any dent in their testimonies.
6.3 The firing that took place in the ground floor that resulted in the death of Subburaj (D2) and Ganesan (D3) has been spoken to vividly by Manikandan (PW-1) and the injured witness, Pratap Singh (PW-19). 10/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 6.4 Shoba (PW-4), in her evidence, has stated that while she was going for her morning walk, she heard the noise of firing and when she came near the barracks, she found the jawans who had sustained bullet injuries lying on the ground and also saw the appellant walking up and down the parade ground with his weapon; she also found the appellant placing the weapon on the guard of honour platform, removing it and again, re-arming himself; when she commanded the appellant to drop the weapon and come near her, he obeyed her command, after which, he was overpowered by the CISF jawans and the injured were rushed to the hospital, where, the doctors declared that Mohan Singh (D1), Subburaj (D2) and Ganesan (D3) were ‘brought dead’.
6.5 Pratap Singh (PW-19), in his evidence, has stated that he reported to duty for the “A” shift on 08.10.2014 around 4.00 a.m.; while he was conversing with Subburaj (D2), Ganesan (D3) and Govardhana Prasad near the portico in the parade ground, they heard firing noises in the first floor of the barracks; a little later, he saw the appellant coming down the staircase with a magazine loaded in the firearm; when Ganesan (D3) asked him as to why he had loaded the magazine in the weapon, he (appellant) opened fire at Subburaj (D2) and Ganesan (D3); on seeing this, when he (PW-19) hid and started to run for cover, he also sustained bullet injuries. 11/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 This witness was examined in chief on 03.01.2017 and was recalled for cross-examination on 15.11.2017. Being an injured witness, we have no good reasons to discard his testimony.
6.6 Ergo, we have no hesitation in holding that the prosecution has proved beyond a peradventure that it was the appellant who had opened fire at Mohan Singh (D1), Subburaj (D2), Ganesan (D3), Pratap Singh (PW-19) and Govardhana Prasad, resulting in the death of the first three, bullet injuries to Pratap Singh (PW-19) and a fracture to Govardhana Prasad when he attempted to run for cover.
7 Coming to the submission of Mr. Malarvannan to bring the case under the exception contained in Section 84 IPC, initially, we were least enthused at it, inasmuch as, this defence was not taken with any degree of seriousness in the trial so as to discharge the onus cast on the appellant by Section 105 of the Evidence Act.
8 Mr. Malarvannan further contended that he intends to file an application under Section 391 Cr.P.C. for taking additional evidence based on the medical records of the appellant, more particularly, the discharge summary issued by the Institute of Mental Health (for short “the IMH”), Kilpauk, a reading of which, showed that the appellant was admitted as an 12/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 inpatient in the IMH, Kilpauk, immediately after he was remanded in judicial custody.
9 This made us call for the entire records, including the immaterial papers, from the committal Court as well the trial Court. We pored over the records and found that the appellant was arrested on 08.10.2014 and was produced before the the DM-cum-JM, Thirukazhukundram, on 09.10.2014 for remand; on 10.10.2014, he was examined by the Prison Counsellor and on his recommendation, he was taken to the IMH, Kilpauk on the same day, where, he was put on a dose of Diazepam. The trial Court records show that even during the committal proceedings, the counsel for the appellant had filed an application in Crl.M.P. No.3962 of 2015 under Section 330 Cr.P.C., on which, the DM-cum-JM, Thirukazhukundram, appears to have conducted an enquiry by having the appellant examined by a Psychiatrist in the IMH, Kilpauk. However, the DM-cum-JM, Thirukazhukundram, had dismissed the petition on 20.10.2015 on the ground that the appellant was fit to face trial. Aggrieved by the said dismissal, the appellant assailed that order in a revision before this Court in Crl.R.C. No.339 of 2016, which was also dismissed on 23.03.2016.
13/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 10 The appellant was not released on bail throughout the trial and was defended by a counsel appointed by the Legal Services Authority. The counsel so appointed once again filed an application in Crl.M.P. No.1335 of 2016 in S.C. No.242 of 2015 before the Sessions Court on the ground that the appellant was not fit to face trial which application came to be dismissed on 26.10.2016 by the trial Court. The counsel, both in the committal Court as well in the trial Court, were concentrating more on saying that the appellant was not fit to face trial and were filing successive applications under Chapter XXV of the Code. Strangely, the defence counsel did not take the plea of mental illness to establish that the appellant was of unsound mind at the time of commission of the offence.
11 Dictates of common sense state that if an accused were to consciously say that he was of unsound mind when he committed the offence in question, then, this simply presupposes that he was conscious of the act that he was performing and therefore, his plea of insanity would naturally have met its waterloo on this ground alone. Therefore, the plea of insanity requires to be decided by a process of inference from the conduct of the accused and attendant circumstances like availability of treatment particulars for mental disorder, etc. Thus, from the records, when we found that the appellant demonstrated strange behaviour after opening fire, 14/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 coupled with the availability of copious medical records amongst immaterial papers that were summoned by us, to show that he was sent for medical treatment immediately after remand, we exercised our powers under Section 391 Cr.P.C. for taking additional evidence in this case.
12 Dr. S. Yashwanth Pradeep, Medical Officer, Central Prison, Puzhal, was summoned to appear before us with the medical records of the appellant available in the prison. We also summoned Professor Dr. P. Poorna Chandrika, Director, IMH, Kilpauk to appear before us with the medical records of the appellant available in the IMH, Kilpauk.
13 On 22.09.2021, we examined Dr. Yashwanth Pradeep as CW-1 and Dr. Poorna Chandrika as CW-2. In view of the nature of the defence that has been raised, we feel it appropriate to extract their evidence ad verbum:
Evidence of Dr. Yashwanth Pradeep (C.W.1) “I have completed my MBBS and MS in General Surgery. I joined the Government service in 2017 and at present, I am working as Medical Officer in the Central Prison I, Puzhal, Chennai. The prisoner Vijay Pratap Singh was admitted in the Central Prison I, Puzhal, Chennai, on 09.10.2014. On 10.10.2014, he was examined by the Prison Counsellor, who has recommended that he be taken to the Institute of Mental Health, Kilpauk, Chennai, for treatment. On 11.10.2014, he was taken by prison escort to the Institute of Mental Health, Kilpauk, Chennai, and was treated as outpatient for sleeplessness and hearing voices. He was brought back to the prison on the same day. The copy of the record of the treatment given to him on 10.10.2014 and 25.10.2014 with outpatient chit is marked as Ex.C1. The prisoner Vijay Pratap Singh was first medically examined in the jail hospital on 25.10.2014. The medical records 15/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 show that he complained of sleeplessness, anxiety and hallucinations. All these have been recorded in the case history of the hospital. After medically examining him, he has been recommended to be sent to the IMH, Kilpauk, for examination and treatment with a request to the Superintendent of Prisons to obtain a reception order and take him to the IMH, Kilpauk. Accordingly, the Superintendent, Central Prison II, Puzhal, Chennai, has addressed a communication dated 31.10.2014 to the Judicial Magistrate, Thirukazhukundram, requesting for a reception order for admitting the Remand Prisoner 75752 Vijay Pratap Singh in the IMH, Kilpauk. The said letter is marked as Ex.C2. Based upon the requisition, the Judicial Magistrate, Thirukazhukundram, passed a Reception Order dated 07.11.2014 for admitting Vijay Pratap Singh in the IMH, Kilpauk, Chennai, for medical examination and report and for providing him required psychiatric treatment. The Reception Order is Ex.C3. Accordingly, the remand prisoner was taken to the IMH, Kilpauk, Chennai, by the prison authorities on 13.11.2014. He was discharged from the IMH, Kilpauk, on 23.06.2015 and brought back to the Central Prison II, Puzhal, Chennai.
Court Question:
Q: Please tell the Court what is the line of treatment that is given to Vijay Pratap Singh.
A: He is on medication for schizophrenia. He is being regularly followed up and treated by the IMH Psychiatrist through video call and in person too, for his complaints like auditory hallucinations. The medical report dated 12.09.2021 that was given by me to the Superintendent, Central Prison I, Puzhal, Chennai and the file copy of the same is marked as Ex.C4.” Evidence of Dr. Poorna Chandrika (C.W.2) “I have completed MBBS, DCH and MD (Psychiatry). I joined Government service in 1996. At present, I am the Director (Full Additional Charge) of the IMH, Kilpauk. I was posted as Assistant Professor in the IMH, Kilpauk in 2007 and since then, I am continuing to work in the IMH, Kilpauk at various levels. The IMH, Kilpauk, was started in the year 1858 and it is run by the State Government. It is a premier organization in the country for treating mental illness and is the second largest mental hospital in Asia. Both 16/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 outpatient and inpatient treatments are available for treating patients with mental illness with a bed capacity of 1,800. It is the only hospital in the State of Tamil Nadu, which is treating criminally mentally ill patients. Vijay Pratap Singh was first produced by the prison authorities before the IMH, Kilpauk on 11.10.2014 and he was treated as outpatient. On 25.10.2014, he was examined at the IMH, Kilpauk and was diagnosed as a case of schizophrenia and appropriate medications were started and he was advised to come with Reception Order for admission. On 13.11.2014, he was admitted in the IMH, Kilpauk, as per the Reception Order of the Judicial Magistrate, Thirukazhukundram (Ex.C3). The patient's wife Sudha Singh visited the IMH, Kilpauk on 28.11.2014 and history of the patient elicited from his wife showed that he was suffering from sleep disturbances, suspiciousness and hearing voices since 2007 and he was on irregular treatment. He was taken to a private psychiatrist in Varanasi in March 2012 and was started on anti- psychotic tablets Risperidone, Nitrazepam, Benzhexol and Olanzapine. He was on these medications for one year. His wife submitted prescriptions and copies of the same are marked as Ex.C5 (series) (18 nos.). From the prescriptions, it is seen that he had taken treatment in Phoneix Hospital, Allahabad also during July 2014 for psychiatric disorder. While he was an inpatient in the IMH, Kilpauk, Mental State Examination was conducted and it revealed that he suffers from delusion of persecution that everyone is scolding him, they are using magic system and walkie-talkie to scold him and hiding everything from his vision. He also had auditory hallucinations as if he was hearing male and female voices scolding him. Based upon the history and the findings in the Mental State Examination, he was diagnosed as a case of paranoid schizophrenia (major mental illness) and appropriate treatment was started. A copy of the report, from our records, is marked as Ex.C6. On 29.05.2015, his discharge from the IMH, Kilpauk was approved by the Visitors' Committee and the same is marked as Ex.C7. On 23.06.2015, the patient was discharged and sent back to the Central Prison, Puzhal, with advice that he should be brought regularly for review as outpatient for treatment. The discharge summary is marked as Ex.C8. Doctors from the IMH, Kilpauk, visit the Central Prison, Puzhal, Chennai, twice a month for examining mentally-ill patients. Accordingly, Dr.V.Jaikumar had examined him regularly at the Central Prison, Puzhal, Chennai. Thereafter, the Judicial Magistrate, Thirukazhukundram, called for an Observation Report, for which the Observation Report dated 02.09.2015 was issued by me and the 17/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 same is marked as Ex.C9. He was last examined in the IMH, Kilpauk on 17.07.2021 and he is being brought by the prison authorities periodically for review. Since his admission as inpatient, he was under my treatment as I was the Unit Head in the IMH, Kilpauk, Chennai.” Q: From your examination and treatment of Vijay Pratap Singh and from his previous medical records, could you offer your opinion as to whether he would have opened fire on account of his auditory hallucinations and delusion of persecution? A: Yes. I am offering this opinion on the ground that the patient was in continuous medication for his mental illness since 2012 in Varanasi and Allahabad. The previous prescriptions show that he was treated for his mental illness on 05.07.2014. As and when he discontinues taking his medicines, he turns violent. On account of his frequent transfer and shift change, it appears that he was not regular in taking his medicines and that is why, he would had a relapse and suffered delusion and hallucinations and opened fire. On 29.11.2014, when his wife and son visited him at the IMH, Kilpauk, they told me that he had taken his medicines and reached Kalpakkam, but whether he took medicines was not known to them as when she (wife) used to speak over phone to him, he had told her that he feels sleepy and that is why, he was not taking the medicines. I have recorded this contemporaneously in my case sheet. (The Court perused the case records of IMH and found this entry therein).”
14 The previous medical records of the appellant for the treatment for mental illness that was taken by him in Varanasi and Allahabad (Ex.C-5 series) which were marked through Dr. Poorna Chandrika (CW-2) show that he had taken treatment under Dr. Pawan Kumar, Psychiatrist, Varanasi and in Phoenix Hospital, Allahabad. We did entertain a lingering doubt about the veracity of these prescriptions. To dispel this, Mr. Rajnish Pathiyil, learned Senior Panel Counsel appointed by us to represent the CISF, placed 18/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 before us the report of the Court of Inquiry dated 07.11.2014 of the CISF and drew our attention to the fact that Dr.Pawan Kumar of Varanasi and Dr.Sanjaya Asthana, Neuro Surgeon, Phoenix Hospital, Allahabad, were examined by the Court of Inquiry, CISF, wherein, they have elaborately stated about the treatment that they had given to the appellant for his mental illness. We place on record our appreciation to Mr. Rajnish Pathiyil, for his fairness. Now, we are convinced that Dr. Pawan Kumar and Dr. Sanjaya Asthana are not phantoms, but, were the psychiatrists who had indeed treated the appellant in Varanasi and Allahabad.
15 We stop here for a moment in the narration of facts and proceed to examine the law on the point as what is required to be established is legal insanity within the ambit of Section 84 IPC and not mere medical insanity.
16 Our research shows that even in Kautilya's Arthasastra, there is an exemption from punishment for a mentally ill offender.
Meaning:
4.13.05 A mendicant and a trader, an intoxicated and an insane person, very close neighbours when threatened by force or in a calamity, and those whose entry is customary, are not to be punished except when prohibited.
17 It appears that the rule at common law, which eventually found 19/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 its way into the statutory text of the Indian Penal Code was no different. An early statement of the position is found in Sir Mathew Hale’s History of the Pleas of the Crown where the position is set out thus:
“If a madman, or “dementes”, are “totally depriv’d of the use of reason, they cannot be guilty of capital offenses, for they have not the use of understanding, and act not as reasonable creatures, but their actions are in effect in the condition of Brutes.”
18 Mr. Sharath Chandran, learned Amicus Curiae, placed before us the research materials unearthed by him from the archival records and submitted that the origins of the legal test to except unsoundness of mind from the rigours of the criminal law, had come up for discussion in the early case of R v. Edward Arnold [1724, 16 How St. Trials 765], where Justice Robert Tracy, in his summing up to the jury, is reported to have stated as under:
“This is the evidence on both sides. Now I have laid it before you; and you must consider of it: and the shooting my lord Onslow, which is the fact for which this prisoner is indicted, is proved beyond all manner of contradiction; but whether this shooting was malicious, that depends upon the sanity of the man. That he shot, and that wilfully (is proved): but whether maliciously, that is the thing: that is the question; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arises from the mind, and the wicked will and intention of the man. If a man be deprived 20/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 of his reason, and consequently of his intention, he cannot be guilty; and if that be the case, though he had actually killed my lord Onslow, he is exempted from punishment: punishment is intended for example, and to deter other persons from wicked designs; but the punishment of a mad man, a person that hath no design, can have no example. This is on one side. On the other side, we must be very cautious; it is not every frantic and idle humour of a man, that will exempt him from justice, and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear, before a man is allowed such an exemption; therefore it is not every kind of frantic humour or something unaccountable in a man's actions, that points him out to be such a mad man as is to be exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment; therefore I must leave it to your consideration, whether the condition this man was in, as it is represented to you on one side, or the other, doth shew a man, who knew what he was doing, and was able to distinguish whether he was doing good or evil, and understood what he did: and it is to be observed, they admit he was a lunatic, and not an ideot. A man that is an ideot, that is born so, never recovers, but a lunatic may, and hath his intervals; and they admit he was a lunatic. You are to consider what he was at this day, when he committed this fact. There you have a great many circumstances about the buying the powder and the shot; his going backward and forward: and if you believe he was sensible, and had the use of his reason, and understood what he did, then he is not within the exemptions of the law, but is as subject to punishment as any other person. Gentlemen, I must leave it to you.” (emphasis supplied)
19 In the aforesaid passage, Justice Robert Tracy drew a clear distinction between “idiocy” and “lunacy”, which, translated in today's terms, would mean “mental retardation” and “mental illness”, respectively. The threshold alluded to by Robert Tracy, J. contemplated a person “totally deprived” of his senses at the time of commission of the criminal act so as to 21/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 be akin to no more than a wild beast. The expression captured the imagination of lawyers and academics at that time and was popularly alluded to as the “Wild Beast Test”.
20 Our attention was then invited to the decision in R v. Lord Ferrers (1760, 19 How St Tr, 885) where a defence of “partial insanity” was set up by the accused. The prosecution argued that criminal liability cannot be avoided if the accused possessed so much reason so as to enable him to comprehend the nature of his action, and “discern the difference between good and evil” at the time of commission of the criminal act. The fact that Lord Ferrers committed the murder with coolness and deliberation weighed against him. He was found guilty and executed.
21 Our attention was also drawn to the case of R v. Hadfield [1800 27 How St Trials 1281]. Hadfield had attempted the regicide of George III in a theatre in Drury Lane. Though he did not suffer from “total insanity”, in the sense explained by Tracy, J. in R v. Arnold (supra), yet, the importance of this case lies in the fact that the jury were successfully persuaded by Erskine (later, the Lord Chancellor Sir Thomas Erskine) to accept that delusions in cases of partial insanity can also form a basis for acquittal. Erskine is reported to have stated:
22/54
https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 “Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity.” 22 The immediate outcome of this case was the enactment of the Criminal Lunatics Act, 1800, which prohibited an accused acquitted on the ground of insanity to go scot-free. The Act required the accused to be institutionalised and kept away from any further danger to society. This Act is an early ancestor of the present day Section 335(1) Cr.P.C.
23 Mr. Sharath Chandran, learned Amicus Curiae, then drew our attention to the Draft Indian Penal Code of Lord Macaulay and the First Law Commissioners in 1837, where clauses 66 and 67 read as under:
“66 Nothing is an offence which is done by a person in a state of idiocy.
67. Nothing is an offence which a person does in consequence of being mad or delirious at the time of doing it.” 24 Thus, Lord Macaulay's Code essentially maintained the distinction between idiocy (Clause 66) and other types of madness or delusions (Clause 67). More importantly, delusions or madness as distinguished from congential retardation, or to use a now obsolete expression “idiocy”, was a separate exception by itself. However, these provisions did not see the light of the day as the Draft Penal Code that was submitted by Lord Macaulay in 1837, underwent a series of revisions at the 23/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 hands of Sir Barnes Peacock before it eventually culminated into the Indian Penal Code, 1860, which came into effect from 01.01.1862.
25 However, it is also necessary to notice some important developments which altered the legal landscape in the interregnum. In 1843, the infamous M'Naghten's case (R. vs. M'Naghten, 1843 8 E.R.718) was decided on 20.01.1843. One Daniel M'Naghten opened fire with a 20 shilling pistol at Edward Drummond, the Secretary of the then U.K Prime Minister Sir Robert Peel, on a delusive belief that Drummond was the Prime Minister. Poor Drummond lost his life and M'Naghten faced trial for murder in which the Lord Chief Justice Tindal, in his charge to the jury, is reported to have addressed as under:
“Lord Chief Justice Tindal (in his charge):- The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.” 26 The jury found that M'Naghten suffered from morbid delusions which firmly pointed towards legal insanity. The jury eventually returned a verdict of “not guilty”, which was the subject matter of great debate in the House of Lords. In the discussion in the House of Lords on 13.03.1843, the 24/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 the Lord Chancellor alluded to the past decisions and supported the retention of the insanity exception observing as under:
“I take it, therefore, that the law is distinctly settled and distinctly understood upon this subject. If it be so, the next question for your Lordships' consideration is, whether there is any reason to alter, or I should say any possibility of altering, the law. Can your Lordships say that if a man, when he commits a crime, is under the influence of delusion and insanity, so as not to know right from wrong, so as not to know what he is doing—is it possible that your Lordships can by any legislative provision say, that such a man shall be responsible for his act, and be liable to lose his life for the wrong he has unknowingly committed? It is impossible. Your Lordships might pass such a law; you have the power to do so; but when you came for the first time to put it into execution, the sense of all, the feeling of all reasonable men, would revolt against it, and your Lordships would be obliged to retrace your steps, and to repeal the law which you had passed in a moment of excited feeling in consequence of recent painful impressions, but which you could not have passed under the influence of sober and steady reason.” 27 The House of Lords nevertheless took the unprecedented step of summoning the learned judges of the Central Criminal Court to put to them five abstract questions of law. Far from meaning any disrespect to the learned judges, it appears that the real purpose of such an exercise was to fully acquaint themselves of the legal position so as to consider whether any change by way of legislation was necessary. The Lord Chancellor observed:
“My Lords, if with respect to the general law, your Lordships think it necessary to take the opinion of the judges, and to have their united authority on the subject, I will request the attendance of those learned persons. I think such a course will give great authority and great force to the proceedings, and may be attended with practical consequences of good, far better than by interfering by legislation. Let us know from the highest authority, from the voice of the judges, what the law is, let it be laid down 25/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 by them in precise terms, together with what is to be in future the administration of that law according to their opinion.”
28 The judges were then summoned, and the replies given by Tindal C.J to the five questions posed to them by the House of Lords have now assumed the acronym “the M'Naghten rules”. For the purpose of the present discussion, it would suffice to notice the following question and answer:
Question by the House of Lords:
“What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?
Answer of Tindal, CJ:
“In answer to which question, assuming that your Lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law ; by which expression we understand your Lordships to mean the law of the land.” It may not be necessary to restate all of these rules here, as they have been elaborately considered by Mr. Justice P.N Ramaswami, speaking for a Division Bench of this Court, in the locus classicus In Re. Papathi Ammal 26/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 [AIR 1959 Madras 239]. The aforesaid passage from M’Naghten, however, demonstrates that the litmus test of legal insanity is whether the accused was, by reason of unsoundness of mind, at the time of commission of the criminal act, incapable of knowing the nature of the act or that he was acting contrary to law. (emphasis supplied)
29 These events in England had their ripples in India by way of the enactment of Act IV of 1849 titled “The Act for the safe custody of criminal lunatics”. The preamble and Section I of the said Act are extracted below:
“ACT No.IV of 1849 Whereas it is expedient to declare what unsoundness of mind excuses the commission of criminal acts, and to provide for the safe custody of persons found to have committed such acts, but acquitted by reason of unsoundness of mind; it is enacted as follows :
I. No person who does an act which, if done by a person of sound mind, is an offence, shall be acquitted of such offence for unsoundness of mind, unless the Court or jury, as the case may be, in which, according to the constitution of the Court, the power of conviction or acquittal is vested, shall find that, by reason of unsoundness of mind, not wilfully caused by himself, he was conscious, and incapable of knowing, at the time of doing the said act, that he was doing an act forbidden by the law of the land.”
30 This is the first piece of legislation which carved out unsoundness of mind as a statutory exception to a criminal offence. Act IV of 1849 was eventually repealed after the IPC had come into force (vide Act 27/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 XVII of 1862) as the exception in the 1849 Act had been subsumed into the present Section 84 IPC. Section 84 IPC substantially incorporates the M'Naghten's rule and reads as under:
“84. Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
31 The expression “unsoundness of mind” occurring in Section 84 IPC is a compendious term, which includes both “mental retardation” and “mental illness” or in colloquial terms “idiocy” and “lunacy”. In Eera vs. State (NCT of Delhi) and another[(2017) 15 SCC 133], the Supreme Court reiterated that, in law, there exists a clear distinction between mental retardation and mental illness. The Court observed:
“Be it noted, similar distinction has been maintained in the Rights of Persons with Disabilities Act, 2016. The purpose of referring to the said judgment in Suchita Srivastava case [Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570] is that this Court has kept itself alive to the fact that Parliament has always kept the mental retarded person and mentally ill person in two different compartments.”
32 Though a person may suffer from mental retardation, it is possible that he may still be able to lead a normal quality of life. The Supreme Court explains this in the following passage from Eera (supra) :
“I have copiously referred to the said authority as it has analysed the distinction between “mental illness” and “mental retardation”. It has also noted that a condition of mental retardation or developmental delay is gauged on the basis of parameters such as 28/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 intelligence quotient (IQ) and mental age (MA) which mostly relate to academic abilities. The Court has narrated about the possibility of late IQ or MA may possess the social and emotional capacities that will enable him or her to be a good parent. Persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time.” Mental illness is defined in Section 2(s) of the Mental Healthcare Act, 2017, to mean as under:
“(s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence”
33 The test of legal insanity under Section 84 IPC is whether the accused, at the time of the commission of the criminal act, was so afflicted by unsoundness of mind as to render him incapable of understanding the nature of his acts or that he is doing what is either wrong or contrary to law.
34 When the M'Naghten's rules found their way into the criminal law, the expression 'schizophrenia' was not there in the medical dictionary. Mr.Sharath Chandran drew the attention of this Court to a paper titled “Criminal law as it pertains to 'mentally incompetent defendants':
McNaughton rule in the light of cognitive neuroscience” by Maxwell Bennet AO (2009, Australian & New Zealand Journal of Psychiatry, Vol 43, Page 289), who has made a forceful argument that the symptoms exhibited 29/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 by Daniel M'Naghten approximated to what is now commonly known as schizophrenia. That schizophrenia is a disease of the mind that could attract M'Naghten's rule, is clear from the following passage in the speech of Lord Denning in the decision of the House of Lords in Bratty vs. Attorney General for Northern Ireland [1963 AC 386]:
“Upon the other point discussed by Devlin J., namely, what is a “disease of the mind” within the M'Naughten Rules, I would agree with him that this is a question for the judge. The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind.”
35 Coming to the applicability of Section 84 IPC to an accused suffering from schizophrenia, the issue is no longer res integra in the light of the judgment of the Supreme Court in Shrikant Anandrao Bhosale vs. State of Maharashtra [(2002) 7 SCC 748]. We also notice that schizophrenia is a classified as a “severe mental illness” under the International Classification of Diseases (ICD) which is an accepted standard for determination of mental illness under Section 3 of the Mental Healthcare Act, 2017 [See Accused ‘X’ v State of Maharashtra (2019) 7 SCC 1].
36 The next seminal question that requires an answer is how does an accused dislodge the onus under Section 105 of the Evidence Act and satisfy the Court that when he committed the criminal act, he was incapable of understanding the nature of the act.
30/54https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 37 There are certain exceptions in Chapter IV of the Indian Penal Code like Section 96 - “Things done in private defence” – where it is possible for the accused to positively lead evidence and testify on oath that he had committed the criminal act in the exercise of his right of private defence. We are afraid that if such an approach is adopted for availing the exception under Section 84 IPC, it would lead to illogical results. No lunatic, having an advisor in his proper senses, would put himself in the box to plead a positive case of insanity.
38 In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563], the Supreme Court held that the benefit of Section 84 IPC can only be established from a totality of proved circumstances which preceded, attended and followed the crime. The test is essentially inferential, and must rest on reliable material and not mere ipse dixits. K. Subba Rao, J., (as he then was) in his inimitable style, has observed as under:
“9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.” (emphasis supplied) 31/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 39 What is the quality of proof that the appellant is required to adduce for discharging the onus under Section 105 of the Evidence Act in order to avail the exception under Section 84 IPC? The answer to this question is that the Court, from the totality of the proved circumstances before it, entertains a reasonable doubt, judged from the stand point of an ordinary prudent man, that the criminal act was committed by the accused by reason of unsoundness of mind without knowing the nature of the act or that he was doing what was either wrong or contrary to law.
40 Now, let us analyse the proved circumstances which preceded, attended and followed the crime in this case. The medical records of the appellant (Ex.C.5 series) show that the appellant was under treatment of Dr.Pawan Kumar, Psychiatrist, Varanasi, from 2012 onwards for mental disorder and that he was put on anti-psychotic tablets, viz., Risperidone, Nitrazepam, Benzhexol and Olanzapine, which are known prescriptions for chronic cases of schizophrenia.
41 Mr. Sharath Chandran placed before this Court a reference from the book entitled “Essentials of Medical Pharmacology”, 7th Edition, by K.D. Tripathi, wherein, at page 446, the following drugs are prescribed for treatment of schizophrenia:
“Patient with mainly negative symptoms and resistant cases – 32/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 clozapine is the most effective; alternatives are olanzapine, risperidone, aripiprazole, ziprasidone.
Patient with mood elevation, hypomania – haloperidol, fluphenazine, quetiapine, olanzapine.” In the same treatise, the following reference to Nitrazepam, which was one of the drugs prescribed for use by the appellant, finds a place:
“Nitrazepam has been shown to actually increase REM sleep. Night terrors and body movements during sleep are reduced and stage shifts to stage 1 and 0 are lessened. Most subjects wake up with a feeling of refreshing sleep. Some degree of tolerance develops to the sleep promoting action of BZDs after repeated nightly use.” 42 At this juncture, it is pertinent to point out that Dr. Poorna Chandrika (CW-2), in her evidence, has stated “the previous prescriptions show that he was treated for his mental illness on 05.07.2014.” When Dr.Poorna Chandrika (CW-2) interviewed the appellant's wife, the latter is reported to have told her that the appellant used to state that since he was feeling sleepy, he was not taking his medicines. Dr. Poorna Chandrika (CW-2) has stated in her evidence, “As and when he discontinues taking his medicines, he turns violent.” The fact that the appellant was put on a dose of Risperidone, Nitrazepam, Benzhexol and Olanzapine prior to the incident has not been seriously challenged by the prosecution. What is, however, evident is that Nitrazepam induces sleep in a schizophrenia patient, which furnishes a plausible explanation as to why the appellant had discontinued it 33/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 resulting in him relapsing into his delusive and violent state. This is the amount of evidence we have with regard to circumstances preceding the crime.
43 Now, let us advert to the proved circumstances which attended the crime. It is the case of the prosecution that the appellant opened fire at Mohan Singh (D1) because he was harassed by the latter. To establish that Mohan Singh (D1) harassed the appellant, there is absolutely no evidence at all. The appellant was a Head Constable and Mohan Singh (D1) also was a Head Constable. The possibility that he was bullied by a superior officer is, therefore, ruled out. We have also noticed from the evidence of Mahendra Singh (PW-2) and Samiran Shah (PW-3) that Mohan Singh (D1) was actually sleeping when the appellant woke him up and opened fire.
Therefore, there was no occasion for any altercation or provocation for the appellant to have gunned down Mohan Singh (D1). There is also no scintilla of evidence to show that the appellant was harassed by Subburaj (D2), Ganesan (D3), Govardhana Prasad and Pratap Singh (PW-19). The evidences of the eyewitnesses show that after opening fire at all of them indiscriminately, the appellant was pacing up and down the parade ground and frequently placing the weapon on the guard of honour platform and removing it. However, when Shoba (PW-4), who was on her morning walk, 34/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 saw the appellant, she risked her life by confronting him face to face and asking him to lay down the weapon. The appellant offered no resistance and meekly obeyed her command, after which, he was overpowered by Shoba (PW-4) and other jawans. We place on record our appreciation for Shoba (PW-4) for showing exemplary courage in the face of grave danger, by risking her own life in order to prevent the appellant from running amuck and endangering more human lives.
44 Coming to the circumstances that followed the crime, we find from the records and from the evidence of Dr. Yashwanth Pradeep (CW-1) that the appellant was lodged in the Central Prison, Puzhal, on 09.10.2014 after he was remanded in judicial custody by the DM-cum-JM, Thirukazhukundram. Within 24 hours, i.e., on 10.10.2014 itself, the appellant was found to be suffering from some mental illness, which had prompted the Prison Counsellor to recommend his production before the IMH, Kilpauk. It is also seen from the copy of the record of treatment and outpatient chit (Ex.C-1) that the appellant was prescribed 5 mg. of Diazepam for treatment which was continued on 21.10.2014 and other subsequent dates.
45 In Devidas Loka Rathod vs. State of Maharashtra [(2018) 7 SCC 718], the Supreme Court invoked Section 84 IPC and acquitted an 35/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 accused who suffered from schizophrenia. The accused was convicted under Section 302 IPC for causing the death of one Harish Chandra Chauhan. Before the Supreme Court, the medical evidence showed that the accused had been put on a dose of Haloperidol and Diazepam which are identical drugs administered to the appellant in this case, before and after the commission of the offence. The Supreme Court had noted that Diazepam is a drug which is commonly used to calm the brain and the nerves and belongs to a class of drugs known as “benzodiazepine” which is used in the treatment of schizophrenia. The nature of these drugs has been set out by the Supreme Court as under:
“16. The nature of illness of the appellant, and its correlation to the nature of treatment required may appropriately be set out as follows:
(i) Haloperidol is used to treat certain
mental/mood disorders (e.g.schizophrenia,
schizoaffective disorders). This medicine helps you to think more clearly, feel less nervous, and take part in everyday life. It can also help prevent suicide in people who are likely to harm themselves. It also reduces aggression and the desire to hurt others. It can decrease negative thoughts and hallucinations.
(iii) Diazepam is used to treat anxiety, alcohol withdrawal, and seizures. It is also used to relieve muscle spasms and to provide sedation before medical procedures. This medication works by calming the brain and nerves. Diazepam belongs to a class of drugs known as benzodiazepines.” 36/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018
46 We also find from the communication dated 31.10.2014 (Ex-C2) addressed by the Superintendent of Prisons, Central Prison, Puzhal, to the DM-cum-JM, Thirukazhukundram, that a request for the issuance of a reception order was made. Accordingly, reception order was issued and the appellant was admitted to the IMH, Kilpauk, for treatment on 20.11.2014 and was taking treatment till his discharge on 29.05.2015. The discharge certificate dated 29.05.2015 (Ex.C.7) also indicates that the appellant was diagnosed of schizophrenia (major mental disorder). The observation report dated 02.09.2015 (Ex.C-9) which was prepared by Dr.Poorna Chandrika (CW-2) requires to be set out in extenso:
“The above described patient was assessed as per Ref.(3).
At present, he has auditory hallucination (hearing voices), threatening in nature and scolding him, delusions of persecution (his department people talking over mike and broadcasting over wireless to disturb his sleep).
From the above findings, he still exhibits symptoms of paranoid schizophrenia (a major mental illness). He requires long term treatment. Further, he needs regular medication with periodical follow-up from Psychiatrist. If medications are discontinued or irregularly given without follow-up assessment, he may exhibit violent behaviour.” (emphasis supplied)
47 It is to be pointed out at this juncture that Dr. Yashwanth Pradeep (CW-1) has stated in his evidence that the appellant continues to be under treatment for his mental illness even now. Dr. Poorna Chandrika 37/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 (CW-2) has corroborated the evidence of Dr. Yashwanth Pradeep (CW-1) by stating that the appellant was examined in the IMH, Kilpauk, even recently on 17.07.2021 and he is being brought by the prison authorities periodically for review.
48 Thus, from the totality of the proved circumstances, we are able to clearly discern that the appellant was suffering from schizophrenia, which manifested itself as auditory hallucinations and hearing of voices of people abusing him. Since he was required to report to duty at various shifts, he was probably not taking the medicines regularly as those medicines were sedative in character and even inhibited him from reporting to duty on time during the early shifts. On the fateful day, the appellant was in the 4.30 a.m. shift, for which, he would have woken up at least half an hour earlier. He possibly did not take medicines which must have resulted in relapse of auditory hallucinations and consequently, he must have opened fire at his colleagues believing that they were abusing him.
49 In our considered opinion, the proved circumstances set out supra – preceding, attending and following the crime – are sufficient to discharge the onus of the appellant under Section 105 of the Evidence Act. The prosecution has not brought any material on record to discredit the evidence of Dr. Yashwanth Pradeep (CW-1) and Dr. Poorna Chandrika 38/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 (CW-2). In particular, we cannot lose sight of the fact that Dr.Poorna Chandrika (CW-2) has been continuously treating the appellant since his admission in the IMH, Kilpauk in November 2014.
50 We, therefore, are of the opinion that the appellant is entitled to an acquittal, as his case falls within the contours of Section 84 IPC. Ex consequenti, we set aside the impugned judgment and order of conviction and sentence dated 09.04.2018 passed by the learned Additional District and Sessions Judge, Chengalpet in S.C. No.242 of 2015.
51 That, however, is not the end of the matter. An accused who is acquitted by taking recourse to the exception under Section 84 IPC cannot be allowed to go scot-free and be unleashed on society. The steps that are required to be taken to deal with a mentally ill accused during the course of an inquiry or trial before a Court or Magistrate have been set out in the judgment of this Court in Kaliyappan vs. State [2020-2-LW (Crl.) 407] rendered by one of us (PNP,J) and requires no further expatiation.
52 Where, however, the Court acquits an accused by giving him the benefit of the exception under Section 84 IPC, it is required to pass consequential orders in terms of Section 335 Cr.P.C. Section 335 Cr.P.C, insofar as it is material, reads as follows:
39/54
https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 “Section 335 - Person acquitted on such ground to be detained in safe custody:
(1)Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,-
(a)order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or
(b)order such person to be delivered to any relative or friend of such person.
(2)No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub- section (1) otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912 ).
(3)…… (4)…..”
53 The Indian Lunacy Act, 1912, was repealed by the Mental Health Act, 1987 which was also repealed and replaced by the Mental Healthcare Act, 2017. Chapter XIII of this Act sets out the responsibilities of other agencies like Courts and the police in dealing with mentally ill persons in general and mentally ill prisoners in particular. Section 103 of the Mental Healthcare Act, 2017 empowers the Court, acting in exercise of powers under Section 335 Cr.P.C, to pass a reception order directing the admission of a prisoner with mental illness into any suitable mental health establishment. The provision goes on to state that such an order shall be 40/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 sufficient authority for the admission of such a person in such establishment to which the prisoner may be lawfully transferred for care and treatment.
54 In the instant case, the appellant hails from Allahabad, Uttar Pradesh and his family members are also residing there. He has no one in this State to take care of him. We are of the considered view that the rights of a mentally ill person recognized under Sections 19 and 20 of the Mental Healthcare Act, 2017, would be better protected if the appellant is transmitted to his parent State of Uttar Pradesh. We notice that Rule 10 of the Mental Healthcare (Rights of Persons with Mental Illness) Rules, 2018, enables the transfer of a prisoner to a mental health establishment outside the State of Tamil Nadu.
55 Therefore, in exercise of the aforesaid powers, we direct the Superintendent, Central Prison, Puzhal, to transfer the appellant to the Government Mental Hospital, Bareilly, Uttar Pradesh, forthwith. The Secretary to Government, Home Department, Government of Tamil Nadu, shall do the needful to ensure safe transmission of the appellant to the Government Mental Hospital, Bareilly. The Director/Superintendent-in- Chief, Government Mental Hospital, Bareilly, is directed to take custody of the appellant Vijay Pratap Singh, and take such measures, as may be necessary, for his proper care and treatment in consonance with the 41/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 provisions of the Mental Healthcare Act, 2017. This direction by us shall be construed as a reception order, by the Director/Superintendent-in-Chief, Government Mental Hospital, Bareilly, Uttar Pradesh.
56 The departments concerned of the Government of Uttar Pradesh and the jurisdictional District and Sessions Judge and Chief Judicial Magistrate shall also be notified, and necessary instructions will, thereafter, be issued by them to ensure smooth implementation of this order.
57 Thereafter, it is open to the family of the appellant to approach the competent authorities at Uttar Pradesh for appropriate orders as to custody of the appellant under Section 335 Cr.P.C. We are of the opinion that this would be the desirable course as the authorities at Uttar Pradesh would be best placed to assess the desirability and suitability of giving custody of the appellant to his family.
VICTIM COMPENSATION:
58 What really surprises us is how did the CISF brass did not know that one of their jawans was suffering from mental illness. Oblivious of this fact, they have allowed him to bear firearms, resulting in the loss of three precious lives and injuries to two.
59 Mr. Rajnish Pathiyil submitted that the Court of Inquiry went into all the aspects and found that even the buddy pair of the appellant was 42/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 not aware of his mental illness.
60 It is true that none would easily accept that he has some mental illness and requires treatment. People will normally go on a denial mode. In fact, in our country, there does exist, even now, a belief that marriage will cure mental illness, as if it is the panacea therefor, little realising that, post marriage, the life of the other spouse is going to be in jeopardy.
61 Be that as it may, coming to the aspect of compensation, Mr.Rajnish Pathiyil, learned Amicus Curiae, informed us that a sum of Rs.10 lakhs was paid as ex gratia to the families of each of the three deceased. This ex gratia compensation has been paid in terms of paragraph 11 of the Office Memorandum F.No.38/37/08 - P & PW (A) dated 02.09.2008 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners’ Welfare, New Delhi, as a part of the service conditions of the jawans, who were killed and therefore, that cannot be adjusted in the compensation that should be paid under the Victim Compensation Scheme, 2013. We were also informed that the two injured, viz., Govardhana Prasad and Pratap Singh (PW-19) were not paid any compensation at all.
62 Therefore, we direct that a payment of Rs.3 lakhs each be made to the widows of Mohan Singh (D1), Subburaj (D2) and Ganesan (D3) 43/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 under Section 357-A, Cr.P.C. read with Rule 5 of the Victim Compensation Scheme, 2013, by the Government of Tamil Nadu. Likewise, we further direct that a payment of Rs.2 lakhs each be made by the Government of Tamil Nadu to Govardhana Prasad and Pratap Singh (PW-19) for the injuries suffered by them in the attack.
63 We direct the Senior Commandant, C.I.S.F., D.A.E., Kalpakkam and the Inspector of Police, Kalpakkam Police Station, to liaise with the two injured C.I.S.F. personnel and the widows of the deceased trio and produce them before the Secretary, District Legal Services Authority, Chengalpet, who shall ensure that the aforesaid compensations are paid by the Government of Tamil Nadu, as directed by us.
64 Mr. Rajnish Pathiyil, learned Amicus Curiae, submitted that Kesavarajan, S/o Ganesan (D3) and Vimal Kumar, S/o Mohan Singh (D1) were given appointment on compassionate ground in the C.I.S.F., whereas, Dharmaraj, S/o Subburaj (D2) applied for a Constable post in the C.I.S.F., but, failed in his three attempts and therefore, he was not granted appointment on compassionate ground.
65 We are of the view that Dharmaraj, S/o Subburaj (D2) should be afforded an opportunity to apply for a follower’s post in the C.I.S.F. like 44/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 cook, water carrier, sweeper, tradesman, etc., which may not demand physical fitness required for an uniformed service like the post of a Constable and if he is otherwise suitable, he may be appointed forthwith. Accordingly, we direct the C.I.S.F. to afford one more opportunity to Dharmaraj for qualifying himself for being appointed in a follower’s post like cook, water carrier, sweeper, tradesman, etc. 66 Mr. Rajnish Pathiyil further informed us that the C.I.S.F. headquarters had recommended payment of extraordinary family pension for the families of the three deceased jawans; however, the Regional Pay and Accounts Office, Chennai, had rejected the proposal, on account of which, the matter has to be taken with the Ministry of Finance, in terms of paragraph (2) of the Government of India instructions dated 26.02.1966.
67 It is seen that the families of five jawans who had died in similar circumstances at other places had been granted extraordinary family pension and we do not know why the families of these three jawans should be discriminated and denied the said pension. Therefore, we make a recommendation to the Secretary, Ministry of Finance and Secretary, Ministry of Home Affairs, Government of India, to sanction extraordinary family pension to the families of the three deceased, viz., Mohan Singh (D1), Subburaj (D2) and Ganesan (D3).
45/54https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 68 We direct the trial Court to hand over the 9 mm. carbine machine gun (MO-1), magazines-2 nos. (MO-2), magazine cover (MO-3), 9 mm. bullets (MO-4) and the arms issue register (Ex.P.10), to the Senior Commandant, C.I.S.F., D.A.E., Kalpakkam, under proper acknowledgment.
69 Before bringing the curtains down, we place on record our profound appreciation to Mr. Sharath Chandran, learned Amicus Curiae, for the remarkable assistance he rendered to this Court by his extensive research and erudition. We also owe our thanks to Mr. Rajnish Pathiyil, counsel for the C.I.S.F., for his able assistance by candidly placing before us, all the available materials, including the service particulars of the deceased trio and the injured duo, in this case.
70 Mr. Malarvannan, learned counsel for the appellant, also deserves our commendation for his persuasive skill and homework, but for which, we would have skimmed over the medical records of the appellant.
71 Mr. Babu Muthu Meeran, learned Additional Public Prosecutor, deserves our appreciation for fairly assisting this Court by submitting the appellant’s medical records from the Central Prision, Puzhal, and liaisoning with the officials of the IMH, Kilpauk.
72 To sum up, our conclusions are as under:
i. We find that the case of the appellant, Vijay Pratap 46/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 Singh, falls within the exception contained in Section 84 of the Indian Penal Code, 1860, though we hold on facts, that he had opened fire and caused the death of three jawans and injuries to two others. Consequently, the judgment and order of conviction and sentence dated 09.04.2018 passed by the learned Additional District and Sessions Judge, Chengalpet, in S.C. No.242 of 2015 is set aside.
ii. The Superintendent, Central Prison, Puzhal, is directed to transfer the appellant, Vijay Pratap Singh, to the Government Mental Hospital, Bareilly, Uttar Pradesh, forthwith. The Director/Superintendent-in-Chief, Government Mental Hospital, Shyam Ganj, Bareilly, Uttar Pradesh, is directed to take custody of the appellant and to provide the necessary care and treatment in consonance with the provisions of the Mental Healthcare Act, 2017.
iii. The Secretary to Government, Home Department, Government of Tamil Nadu, shall do the needful to ensure safe transmission of the appellant to the Government Mental Hospital, Bareilly, Uttar Pradesh. The departments concerned of the Government of Uttar Pradesh and the jurisdictional District & Sessions Judge and Chief Judicial Magistrate shall be notified, and necessary instructions shall, thereafter, be issued by them to ensure smooth implementation of this order. 47/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 iv. It will, thereafter, be open to the family members of the appellant to approach the competent authorities at Uttar Pradesh for appropriate orders as to custody of the appellant under Section 335 Cr.P.C.
v. The Secretary, District Legal Services Authority, Chengalpet, shall ensure disbursement of a sum of Rs.3 lakhs each, to the widows of Mohan Singh (D1), Subburaj (D2) and Ganesan (D3) and Rs.2 lakhs each to Govardhana Prasad and Pratap Singh (PW-19) under Section 357-A, Cr.P.C. read with Rule 5 of the Victim Compensation Scheme, 2013, by the Government of Tamil Nadu.
vi. The Senior Commandant, C.I.S.F., D.A.E., Kalpakkam, shall liaise with the injured C.I.S.F. personnel and the families of the deceased and the Secretary, District Legal Services Authority, Chengalpet, shall ensure that the compensation is disbursed without any unnecessary delay.
vii. The C.I.S.F. shall afford one more opportunity to Dharmaraj, S/o Subburaj (D2) for qualifying himself for being appointed in any follower’s post like cook, water carrier, sweeper, tradesman, etc. and appoint him if he is found eligible.
viii. We make a recommendation to the Secretary, Ministry of Finance and Secretary, Ministry of Home Affairs, Government of India, to sanction extraordinary family 48/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 pension to the families of the three deceased, viz., Mohan Singh (D1), Subburaj (D2) and Ganesan (D3).
ix. The trial Court shall hand over the 9 mm. carbine machine gun (MO-1), magazines-2 nos. (MO-2), magazine cover (MO-3), 9 mm. bullets (MO-4) and the arms issue register (Ex.P.10), to the Senior Commandant, C.I.S.F., D.A.E., Kalpakkam, under proper acknowledgment.
The criminal appeal is allowed on the aforesaid terms.
(P.N.P., J) (R.N.M., J)
28.10.2021
Index: Yes/No
gm/cad
49/54
https://www.mhc.tn.gov.in/judis/
Crl.A. No.451 of 2018
To
1 The Additional District and Sessions Judge
Chengalpet
2 The District & Sessions Judge
Barreilly
Uttar Pradesh
3 The Chief Judicial Magistrate
Barreilly
Uttar Pradesh
4 The Secretary
Ministry of Finance, Government of India
North Block
New Delhi 110 001
5 The Secretary
Ministry of Home Affairs, Government of India North Block New Delhi 110 001 6 The Secretary Home Department Government of Tamil Nadu Fort St. George, Chennai 600 009 7 The Secretary Finance Department Government of Tamil Nadu Fort St. George, Chennai 600 009 8 The Secretary Home Department Government of Uttar Pradesh Lucknow, Uttar Pradesh 50/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 9 The Secretary Finance Department Government of Uttar Pradesh Lucknow, Uttar Pradesh 10 The District Collector Chengalpet, Tamil Nadu 11 The District Collector Bareilly Uttar Pradesh – 243 001 12 The Superintendent of Police Bareilly Uttar Pradesh – 243 001 13 The Inspector of Police Kalpakkam Police Station Kanchipuram District 14 The Superintendent Central Prison Puzhal Chennai 15 The Director/Superintendent-in-Chief Government Mental Hospital Shyam Ganj Bareilly Uttar Pradesh 16 The Director Institute of Mental Health Medavakkkam Tank Road Kilpauk Chennai 600 010 51/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 17 The Inspector General Department of Atomic Energy Sector Office of the Director General of CISF 13, C.G.O. Complex New Delhi 110 003 18 The Senior Commandant Central Industrial Security Force Department of Atomic Energy Kalpakkam – 603 102 19 The Senior Commandant Central Industrial Security Force High Court, Madras Chennai - 600 104 20 The Secretary District Legal Services Authority District Court Chengalpet 21 The Under Secretary R & W (MHA) NDCC-II Building Jai Singh Road New Delhi 22 The Under Secretary (F) D.O.P & P.W. Lok Nayak Bhawan Khan Market New Delhi 23 Mrs. Kamla Devi W/o late Mohan Singh Jahagirpur Kherri Gadasi Post, Nadbai Bharatpur Rajasthan 321 028 52/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 24 Mrs. Lalitha Rani W/o late A. Subbu Raj Chinna Reddipatti Village Vannivelanpatti Post Peraiyur Taluk Madurai District – 625 702 25 Mrs. G. Muthulakshmi W/o late R. Ganesan Dhalavaipatti Village Nadupatti Post Omalur Taluk Salem District – 636 351 26 Mr. Pratap Singh Rankadipal Village Kirtinagar Post, Tihri Garhwal District Uttarakhand – 249 161 27 Mr. Govardhana Prasad Lamberi Village and Post Rajouri District Jammu & Kashmir – 185 152 28 Mrs. Sudha Singh W/o Mr. Vijay Pratap Singh Karchhana Allahabad District Uttar Pradesh – 212 301 29 The Public Prosecutor High Court, Madras Chennai 600 104 53/54 https://www.mhc.tn.gov.in/judis/ Crl.A. No.451 of 2018 P.N. PRAKASH, J.
and R.N. MANJULA, J gm/cad Criminal Appeal No.451 of 2018 28.10.2021 54/54 https://www.mhc.tn.gov.in/judis/