Himachal Pradesh High Court
Jeevan Rana vs State Of Himachal Pradesh on 1 May, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 324/2012Decided on: 1.5.2015 .
___________________________________________________ Jeevan Rana. ...appellant.
Versus State of Himachal Pradesh ...Respondent.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes For the appellant: Mr. Dibender Ghosh, Advocate.
For the Respondent: Mr. Ramesh Thakur, Asstt. A.G. _________________________________________________________ Per Justice Rajiv Sharma, Judge (oral).
This appeal is instituted against the judgment dated 29.9.2011 rendered by the Additional Sessions Judge, Mandi in Sessions Trial No. 20 of 2010, whereby the appellant-accused (hereinafter referred to as the "accused" for convenience sake), who was charged with and tried for offences punishable under section 376 and 452 of the Indian Penal Code, has been convicted and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 2 sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine, he was further directed to undergo .
simple imprisonment for six months for the commission of offence punishable under section 376 (2) (f) of the Indian Penal Code. He was further sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo simple imprisonment for three months for the commission of offence punishable under section 451 of the Indian Penal Code. Both the sentences were ordered to run concurrently.
2. Case of the prosecution, in a nutshell, is that the grand father of the prosecutrix filed an application before the police on 5.4.2010 stating therein that he had gone towards his fields at about 4.30 P.M. His wife was present at home. The prosecutrix was present in the house with her brother. She was watching T.V. The wife of the complainant and his grandson were in the upper storey. Accused came to the room of prosecutrix and tried to rape her. She shouted for help. However, her noise could not be heard in the din of the T.V. When the ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 3 wife of the complainant opened the door, accused ran away. He was identified by the wife of the complainant as Totu alias Jiwan Ram. The incident was narrated to the .
complainant. He made inquiry from the prosecutrix. She revealed the incident. FIR Ext. PW-15/A was registered.
The prosecutrix was medically examined. Accused was arrested. He was also examined medically by Dr. Aman Rana. He issued MLC to PW-1/A. Site Plan Ext. PW-
15/A was prepared. Photographs were also taken. Bed sheet was also recovered. Case property was sent to F.S.L., Junga on 12.4.2010 vide RC No. 79/10. The result of the analysis is Ext. PW-15/D. Police investigated the case and the challan was put up in the court after completing all the codal formalities.
3. Prosecution examined as many as 15 witnesses in all to prove its case against the accused.
Statement of accused under Section 313 Cr.P.C. was recorded. He admitted that his underwear, pants and shirt were preserved by the Medical Officer. He also produced DW-1 Dr. Savinder Singh. Learned trial Court convicted and sentenced the accused, as noticed hereinabove.
::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 44. Mr. Dibender Ghosh, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused.
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5. Mr. Ramesh Thakur, learned Assistant Advocate General, has supported the judgment dated 29.9.2011, passed by the trial Court.
6. We have heard the learned counsel for the parties and have gone through the record meticulously.
7. PW-1 Dr. Aman Rana examined the accused. He issued MLC Ext. PW-1/A. r has According to him, smegma was absent. He noticed small medically abrasion on left side of glans penis. In his cross-
examination, he deposed that accused was mentally normal as per his opinion. He has not noticed any abrasion or scratch on the person of the accused except one mentioned by him in the MLC.
8. PW-2 Dr. Sarla Chand has examined the prosecutrix. She has issued MLC Ext. PW-2/A. According to her, hymen was ruptured, inflamed and swelling was present. According to her, the child was sexually exposed within 24 hours of examination.
::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 59. Prosecutrix has appeared as PW-3. In her examination-in-chief, she has deposed that she was present in the room watching T.V. on a bed. Her grand-
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mother was present in the different room. Her younger brother was sleeping in the different room. The accused did a bad act (Ganda Kam). She cried and called her grand mother. She has denied the suggestion that accused behaved like a mentally unsound person and roams in the area. She has denied the suggestion that her grand mother had told her to name the accused.
She has denied that no bad act was done with her.
10. PW-4 Prakash Chand is the grand father of the prosecutrix. According to him, his wife came to fields at 5.20 P.M. She informed that the prosecutrix was raped. He went to home. The prosecutrix was crying. She told him that one boy came to her room and raped her. He checked her and found that blood was oozing out of her private parts. He informed his son and told about the incident. Thereafter, he reported the matter vide application Ex.PW-4/A. In his cross-
examination, he has deposed that girl was lying on the bed and crying when he reached the home.
::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 611. PW-5 Yashoda Devi is the grand mother of the prosecutrix. She told the prosecutrix to go and .
watch T.V. in the ground floor. When she was returning from the room, she heard some noise of foot steps. She looked from the window but could not find any person.
When she saw again, she noticed the accused. He was having his pant and underwear upto the knees. When he looked back, she identified him. The accused was trying to put on the clothes. She went down and found that the prosecutrix was lying on the bed. She was crying. She found that cloths of prosecutrix were pulled up. There was blood on the bed sheet and the blood was coming out from the private part of the prosecutrix. She told her that one boy came, who laid upon her. She shouted. Her husband was in the fields. In her cross-
examination, she has deposed that she saw the accused running on the passage towards the back side of the house.
12. PW-6 Vijay Kumar has deposed that his father told him that prosecutrix was raped. He checked and found that blood was oozing out from the private ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 7 part of the prosecutrix. He, his father and his daughter went to Police Station, Sarkaghat. FIR was registered.
13. PW-7 Kishan Chand has deposed that .
accused came to his house at about 4/4.30 P.M. He took tea and thereafter he left. His wife gave him Rs.
15/-.
14. Statements of PW-8 Prem Singh and PW-9 Rakesh Kumar are formal in nature.
brought
15.
r to
PW-10 HHC Shyam Lal has deposed that he
the prosecutrix to
alongwith her grandfather on 6.4.2010.
Zonal Hospital, Mandi
16. Statement of PW-11 Rakesh Kumar is formal in nature.
17. PW-12 Dharam Singh has deposed that Constable Rakesh Kumar deposited the case property with him on 5.4.2010. He made the entry at Sr. No. 1316/10. He deposited the case property in Malkhana.
SHO Ranjit Singh handed over to him one parcel on 6.4.2010. He made entry at Sr. No. 1317/10. He deposited the same in Malkhana. HHC Shyam Lal deposited 3 parcels with him on the same day. He deposited the same in Malkhana and made entry at Sr. ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 8 No. 1318/10. He handed over all these articles to HHC Roop Singh with the direction to carry the same to F.S.L., Junga vide RC No. 70/10.
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18. PW-13 HHC Roop Singh has carried out the case property to F.S.L., Junga on 12.4.2010 in safe condition.
19. PW-14 ASI Vijay Kumar moved an application Ext. PW-14/B for examination of the accused.
20. PW-15 has deposed that the application was filed on the basis of which FIR Ext. PW-15/A was registered. He prepared the site plan. The photographs were taken. Bed Sheet was recovered. Statements of the witnesses were recorded. Parcels were sent to F.S.L., Junga. Report of F.S.L., Junga Ext. PW-15/B was received.
21. According to the statement of PW-3 prosecutrix, she was watching T.V. in her room. Accused came and performed bad act 'ganda kaam' with her. Her statement inspires confidence though minor. PW-4 Prakash Chand, and PW-5 Yadhoda Devi grandfather and grandmother of the prosecutrix have corroborated the statement of PW-3. PW-4 Prakash Chand when ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 9 informed by PW-5 Yashoda Devi has noticed the blood oozing from the private part of the prosecutrix. He has moved an application Ext. PW-4/A, on the basis of which .
FIR was registered. PW-5 Yashoda Devi has identified the accused and noticed the accused putting up his clothes.
She also noticed blood on the bed sheet and blood oozing out from the private parts of the prosecutrix. PW-2 Dr. Sarla Chand has opined definitely that hymen was ruptured, inflamed and swelling was present and the prosecutrix was sexually exposed within 24 hours of examination. PW-1 Aman Rana has examined the accused and issued MLC Ext. PW-1/A. He has noticed abrasion on left side of glans penis. The prosecutrix was born on 4.7.2004 as per Ext. PW-9/A.
22. Mr. Dibender Ghosh has vehemently argued that his client was insane. He has relied upon the statement of DW-1 Dr. Savinder Singh. DW-1 Dr. Savinder Singh has deposed that he has treated the accused. The accused had come to him on 27.7.2009. He was registered on OPD basis. He was diagnosed as suffering from bipolar affective disorder. He prescribed medicines. Patient came again on 28.8.2009. He was ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 10 admitted in the hospital on the same day. He was put on suitable treatment. He was given four dosages of electric shock. He was discharged on 11.9.2009. Thereafter, .
patient never came. According to him, patient looked like a normal person. The patient had impaired judgment because he was suffering from psychosis. In his cross-
examination, he has admitted that the pages of the indoor file were different. He has not noted pages.
r to Volunteered that pages were not numbered in any file.
He did not know the accused personally. He has also admitted that the entries were in different pen inside the red circle. He has also admitted that patient could carry out normal pursuits.
23. We have also gone through Ex.DW-1/A. These are loose papers un-numbered. The Court while taking up the plea of insanity has to see the legal insanity and not medical insanity. It is for the accused to prove that he was suffering from insanity as per section 105 of the Indian Evidence Act. The accused has not led any tangible evidence to prove that he was suffering from insanity.
::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 1124. Their Lordships of the Hon'ble Supreme Court in Sheralli Wali Mohammed vs. State of Maharashtra, AIR 1972 SC 2443 have held that the law .
presumes every person of the age of discretion to be sane unless the contrary is proved and it would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. Their Lordships have held as under:
"12. To establish that the acts done are not offences under S. 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offence, he was labouring under any such incapacity?
On this question, the state of his mind before and after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thakkar v. The State of Gujarat, (1964) 7 SCR 361 at p. 367 = (AIR 1964 SC 1563), Subba Rao, J., as he then was, speaking for the Court said "(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 was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence oral, ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 12 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.''
13. With this in mind, let us consider the evidence to see whether the accused was in an unsound state of mind at the time of the commission of the acts attributed to him, P. W. 3, one of the brothers of the accused stated that the accused used to become excited and uncontrollable, that sometimes he behaved like a mad man, and that he was treated by Dr. Deshpande and Dr. Malville. P. W. 4, Hyderali, also a brother of the accused, has stated that the accused used to suffer from temporary insanity and that he was treated by Dr. Deshpande and Dr. Malville. The evidence of these two witnesses on the question of the insanity of the accused did not appeal to the trial Court and the Court did not, we think rightly, place any reliance upon it. No attempt was made by the defence to examine the two doctors. There was, therefore, no evidence to show that, at the time of the commission of the acts, the accused was not in a sound state of mind. On the other hand, P. W. 8, Rustom Mirja, has stated in his deposition that the accused has been working with him as an additional motor driver for the last 8 or 10 years and that his work and conduct were normal. He also stated that the accused worked with him on March 6, 1968, till 4 P.M. P. W. 16, Dr. Kaloorkar, who examined the accused at 7.20 A.M. on the day of the occurrence, has stated in his deposition that he found that the accused was in normal condition. His evidence has not been challenged in cross-examination.
::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 13We think that not only is there no evidence to show that the accused was insane at the time of the commission of the acts attributed to him, but that there is nothing to indicate that he had not the necessary mens rea when he committed the offence. The law presumes every person of the .
age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. The mere fact that no motive has been proved why the accused murdered his wife and child or, the fact that he made no attempt to run away when the door was broke open, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offence. We see no reason to interfere with the concurrent findings on this point either."
25. The nature and symptom of the mis bipolar disease were described by the Hon'ble High Court of Karnataka in Nalini Kumari vs. K.S. Bopaiah 2007 (1) KarLJ 342. The Court has observed as under:
"19. Now let us discuss what is mis Bipolar disease and whether it is curable/controllable and treatable disease?
20. In National Institute of Mental Health Publication No. 3679, it is stated:
Introduction:
Bipolar disorder, also known as manic-depressive illness, is a brain disorder that causes unusual shifts in a person's mood, energy, and ability to function. Different from the normal ups and downs that everyone goes through, the symptoms of bipolar disorder are severe. They can result in damaged relationships, poor job or school performance, and even ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 14 suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives.
(underlining is by us) What is the Course of Bipolar Disorder?
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Episodes of mania and depression typically recur across the life span. Between episodes, most people with bipolar disorder are free of symptoms, but as many as one-third of people have some residual symptoms. A small percentage of people experience chronic unremitting symptoms despite treatment.
The classic form of the illness, which involves recurrent episodes of mania and depression, is called bipolar I disorder.
Some people, however, never develop severe mania but instead experience milder episodes of hypomania that alternate with depression; this form of the illness is called bipolar II disorder. When four or more episodes of illness occur within a 12-month period, a person is said to have rapid- cycling bipolar disorder. Some people experience multiple episodes within a single week, or even within a single day. Rapid cycling tends to develop later in the course of illness and is more common among women than among men.
People with bipolar disorder can lead healthy and productive lives when the illness is effectively treated (see below - "How is Bipolar Disorder Treated"). Without treatment, however, the natural course of bipolar disorder tends to worsen. Over time a person may suffer more frequent (more rapid-cycling) and more severe manic and depressive episodes than those experienced when the illness first appeared. But in most cases, proper treatment can help reduce the frequency and severity of episodes and can help people with bipolar disorder maintain good quality of life.
21. In Health & Medical Information in Psychiatry (Australia's Central Health & Medical Information Resource), it is stated:
Bipolar Affective Disorder (BPAD) is a psychological disease.::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 15
This condition is characterised by alternating syndromes of depression and mania. Depression is a psychiatric syndrome characterised by a subjective feeling of depression, loss of enjoyment in all activities and overwhelming feelings of guilt and worthlessness.
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Mania represents the opposite end of the spectrum characterised by erratic and disinhibiter, behaviour, poor tolerance or frustration, over-extension of responsibility and vegetative signs. These include raised libido, weight loss with anorexia, decreased need for sleep and excessive energy.
Incidence:
The prevalence is 1% worldwide. It is equally common in men and women. There is no variation between socioeconomic class or race. Page 0134 The average age of onset is 21. The increased frequency found in divorced people is probably a consequence of the condition.
Predisposing Factors:
The most significant risk factor for the development of BPAD is a family history of either BPAD or depression.
Natural History:
The condition of bipolar usually begins between the ages of 30 to 40 years old. There are two types of bipolar affective disorder - Type I and type II. In type I BPAD, patients will meet the criteria for a full manic episode but may never experience an episode of major depression, type II BPAD, the patient will fulfil the criteria for a major depressive episode but will never experience a full manic episode. They may experience a less form of mania called hypomania.
The patient in an episode of major depression is at increased risk of self-harm and suicidal behaviour and must be monitored closely for risk factors. The duration of depressive ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 16 episode varies but usually lasts for approximately six months if left untreated. In the majority of cases, the patient experiencing an episode of mania will generally refrain from self-harm behaviour. They will, however, place their finances and social life at risk by indulging in wreckless behaviour.
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These episodes again last for around 3-6 months if left untreated by medication. The patient with type I BPAD will typically experience 10 episodes of mania throughout their lives.
Prognosis:
The average duration of a manic episode is 3-6 months with 95% making a full recovery in time. Recurrence is the rule is bipolar disorders, with up to 90% relapsing within 10 years. In terms of overall prognosis, 15% completely recover from the illness. 50-60% partially recover and one third will retain chronic symptoms resulting in social and occupational dysfunction.
Investigation:
Patients should be screened for thyroid function and can produce hypothyroidism. During treatment, lithium levels should be checked for 3 months, along with regular thyroid and renal function rents.
Treatment Overview:
The primary treatment for BPAD involves long-term daily medications. The most commonly used drug in the initial management of BPAD is lithium. The drug takes about 2 weeks to take effect and is effective in stabilising the patient's mood. Other drugs such as valproate and tegretol are more commonly used in the long term to help prevent the recurrence of mania and depression in patients with BPAD. They may also be combined with lithium for greater effect, if one agent proves inadequate to control the symptoms.::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 17
Psychotherapy is also helpful in the management of BPAD Group therapy, family therapy and individual psychotherapy have been shown to improve the outcome of this condition when combined with the regular use of medications.
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22. In Wikipedia, the free encyclopedia, it is stated:
Bipolar disorder (previously known as Manic Depression) is a psychiatric diagnostic category describing a class of mood disorders in which the person experiences clinical depression and/or mania, hypomania, and/or mixed stated. The disorder can cause great distress among those afflicted and those living with them. Bipolar disorder can be a disabling condition, with a higher-than-average risk of death through suicide.
The difference between bipolar disorder and unipoloar disorder (also called major depression) is that bipolar disorder involves both elevated and depressive mood states. The duration and intensity of mood states varies widely among people with the illness. Fluctuating from one mood state to the next is called "cycling". Mood swings can cause impairment or improved functioning depending on their direction (up or down) and severity (mild to severe). There can be change in one's energy level, sleep pattern, activity level, social rhythms and cognitive functioning. Some people may have difficulty functioning during these times.
Domains of the bipolar spectrum:
Bipolar disorder is often a life-long condition that must be carefully managed. Because there is so much variation in severity and nature of mood problems, it is increasingly being called bipolar spectrum disorder. The spectrum concept refers to subtypes of bipolar disorder or a continuant of mood problems, that can include sub-syndromal (below the symptom threshold for categorical diagnosis) symptoms. Nassir Ghaemi, M.D., has also contributed to the development of a bipolar spectrum questionnaire. The full bipolar spectrum includes all states or phases of the bipolar disorders.::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 18
Kraepelin's (1921) construct is useful for primary care clinicians, patients and families. It describes variations in two directions (mania and depression) and of three aspects: mood, activity and thinking.
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Bipolar depression:
According to the Mayo Clinic, in the depressive phase, signs and symptoms include: persistent feelings of sadness, anxiety, guilt, anger, isolation and/or hopelessness, disturbances in sleep and appetite, fatigue and loss of interest in daily activities, problems concentrating, irritability, chronic pain without a known cause, recurring thoughts of suicide.
A 2003 study by Robert Hirschfeld, M.D., of the University of Texas Medical Branch, Galveston found bipolar patients fared worse in their depressions than unipolar patients. In terms of disability, lost years of productivity, and potential for suicide, bipolar depression, which is different (in terms of treatment), from unipolar depression, is now recognized as the most insidious aspect of the illness.
Severe depression may be accompanied by symptoms of psychosis. These symptoms include hallucinations (hearing, seeing or otherwise sensing the presence of stimuli that are not there) and delusions (false personal beliefs that are not subject to reason or contradictory evidence and are not explained by a person's cultural concepts). They may also suffer Page 0136 from paranoid thoughts of being persecuted or monitored by some powerful entity such as the government or a hostile force or become paranoid that they'll be abandoned and left by those close to them. Intense and unusual religious beliefs may also be present, such as patients' strong insistence that they have a God-given role to play in the world, a great and historic mission to accomplish, or even that they possess supernatural powers. Delusions in a depression may be far more distressing, sometimes taking the form of intense guilt for supposed wrongs that the patient believes he or she has inflicted on your others. There are a ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 19 number of conflicting theories on what can be considered the cause of bipolar depression, and what may be a symptom, none of which are yet widely accepted as correct.
It is crucially important to understand that there is no blood .
test or brain scan that expresses distinctly that this disorder exists.
Diagnosis:
Diagnostic criteria:
Flux is the fundamental nature of bipolar disorder. Both within and between individuals with the illness, energy, mood, thought, sleep, and activity are among the continually changing biological markers of the disorder. The diagnostic subtypes of bipolar disorder are thus static descriptions -
snapshots, perhaps - of an illness in continual change. Individuals may stay in one subtype, or change into another, over the course of their illness. The DSMV, to be published in 2011, will likely include further and more accurate sub-typing (Akiskal and Ghaemi, 2006).
There are currently four types of bipolar illness. The DSM-IV- TR details four categories of bipolar disorder, Bipolar I, Bipolar II, Cyclothymia, and Bipolar Disorder NOS (Not Otherwise Specified).
According to the DSM-IV-TR, a diagnosis of Bipolar I disorder requires one or more manic or mixed episodes. A depressive episode is not required for a diagnosis of BP I disorder, although the overwhelming majority of people with BP I suffer from them as well.
Bipolar II, the more common but by no means less severe type of the disorder, is usually characterized by one or more episodes of hypomania and one or more severe depressions. A diagnosis of bipolar II disorder requires only one hypomanic episode. This stipulation is used mainly to differentiate it ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 20 from unipolar depression. Although a patient may be depressed, it is very important to find out from the patient or the patient's family or friends if hypomania has ever been present, using careful questioning. This, again, avoids the antidepressant problem. Recent screening tools such as the .
Hypomanic Check List Questionnaire (HCL-32) have been developed to assist the quite often difficult detection of Bipolar II disorders.
A diagnosis of Cyclothymic Disorder requires the presence of numerous hypomanic episodes, intermingled with depressive episodes that do not meet full criteria for major depressive episodes. The main idea here is that there is a low-grade cycling of mood which appears to the observer as a personality trait, but interferes with functioning.
Page 0137 If an individual clearly seems to be suffering from some type of bipolar disorder but does not meet the criteria for one of the subtypes above, he or she receives a diagnosis of Bipolar Disorder NOS (Not Otherwise Specified).
Misdiagnosis:
There are many problems with symptom accuracy, relevance, and reliability in making a diagnosis of bipolar disorder using the DSM-IV-TR. These problems all too often lead to misdiagnosis.
Infact, University of California at San Diego's Hagop Akiskal M.D., believes that the way the bipolar disorders in the DSM are conceptualized and presented routinely lead many primary care doctors and mental health professionals to misdiagnose bipolar patients with unipolar depression, when a careful history from patient, family, and/or friends would yield the correct diagnosis.
If misdiagnosed with depression, patients are usually prescribed antidepressants, and the person with bipolar depression can become agitated, angry, hostile, suicidal, and ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 21 even homicidal (these are all symptoms of hypomania, mania, and mixed states).
Treatment:
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Currently, bipolar disorder cannot be cured, though psychiatrists and psychologists believe that it can be managed.
The emphasis of treatment is on effective management of the long-term course of the illness, which usually involves treatment of emergent symptoms. Treatment methods include pharmacological and psychotherapeutic techniques. Leading bipolar specialist, Gillian Townley, has researched the effect of the Ferret Rabbit process.
Prognosis and the goals of long-term treatment:
A good prognosis results from good treatment which, in turn, results, from an accurate diagnosis. Because bipolar disorder continues to have a high rate of both under-diagnosis and misdiagnosis, it is often difficult for individuals with the illness to receive timely and competent treatment.
Bipolar disorder is a severely disabling medical condition. In fact, it is the 6th leading cause of disability in the world, according to the World Health Organization. However, with appropriate treatment, many individuals with bipolar disorder can live full and satisfying lives. Persons with bipolar disorder are likely to have periods of normal or near normal functioning between episodes.
Ultimately one's prognosis depends on many factors, which are, infact, under the individual's control; the right medicines; the right does of each; a very informed patient; a good working relationship with a competent medical doctor; a competent, supportive and warm therapist; a supportive family or significant other; and a balanced lifestyle including a ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 22 regulated stress level, regular exercise and regular sleep and wake times.
There are obviously other factors that lead to a good prognosis, as well, such as being very aware of small changes .
in one's energy, mood, sleep Page 0138 and eating behaviors, as well as having a plan in conjunction with one's doctor for how to manage subtle changes that might indicate the beginning of a mood swing. Some people find that keeping a log of their moods can help them in predicting changes.
The goals of long-term optimal treatment are to help the individual achieve the highest level of functioning while avoiding lapse.
23. The following is a quote from a successfully treated individual with bipolar disorder (from the U.S. National Institute of Mental Health):
Manic-depression distorts moods and thoughts, incites dreadful behaviors, destroys the basis of rational thought, and too often erodes the desire and will to live. It is an illness which is biological yet looks and feels psychological, one that is unique in conferring advantage and pleasure, yet one that brings in its wake almost unendurable suffering and, not infrequently, suicide. I am fortunate that I have not died from my illness, fortunate in having received the best medical care available, and fortunate of having the friends, colleagues, and family that I do.
Bipolar disorder and creativity Bipolar disorder is found in disproportionate numbers in people with creative talent such as artists, musicians, authors, performers, poets and scientists, and some credit the condition for their creativity. Many famous historical figures gifted with creative talents commonly are believed to have been affected by bipolar disorder, and were "diagnosed" after their deaths based on letters, correspondence, contemporaneous accounts, or other material.::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 23
It has been speculated that the mechanisms, which cause the disorder may also spur creativity.
Kay Redfield Jamison, who herself has bipolar disorder and is considered a leading expert on the disease, has written several .
books that explore this idea, including Touched with Fire.
Research indicates that while mania may contribute to creativity (See Andreasen, 1988), hypomanic phases experienced in bipolar I, II, and in cyclothymia appear to have the greatest contribution in creativity (See Richarges, 1988). This is perhaps due to the distress and impairment associated with full-blown mania, which may be preceded by symptoms of hypomania (i.e. increased energy, confidence, activity), but soon spirals into a state much too debilitating to allow creative endeavour.
Hypomanic phases of the illness allow for heightened concentration on activities, and the manic phases allow for around-the-clock work with minimal need for sleep.
Another theory is that the rapid thinking associated with mania generates a higher volume of ideas and as well associations drawn between a wide range of seemingly unrelated information.
The increased energy also allows for grater volume of production."
26. Their Lordships of the Hon'ble Supreme Court in Sudhakaran vs. State of Kerala 2010 (10) SCC 582 have distinguished the legal insanity with medical insanity as under:
"26. The defence of insanity has been well known in the English Legal System for many centuries. In the earlier times, it was usually advanced as a justification for seeking pardon. Over a period of time, it was used as a complete defence to ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 24 criminal liability in offences involving mens rea. It is also accepted that insanity in medical terms is distinguishable from legal insanity. In most cases, in India, the defence of insanity seems to be pleaded where the offender is said to be suffering from the disease of Schizophrenia.
.
27. The plea taken in the present case was also that the appellant was suffering from "paranoid schizophrenia". The term has been defined in Modi's Medical Jurisprudence and Toxicology1 as follows:
"Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than in females. The main characteristic of this illness is a well- elaborated delusional system in a personality that is otherwise well preserved. The delusions are of persecutory type. The true nature of this illness may go unrecognized for a long time because the personality is well preserved, and some of these paranoiacs may pass off as a social reformers or founders of queer pseudo-
religious sects. The classical picture is rare and generally takes a chronic course.
Paranoid Schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously.
Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sound or noises in the ears, but later 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 1 [23rd Ed. Page 1077] 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 ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 25 owing to these painful and disagreeable hallucinations and delusions. "
28. The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purposes of claiming the benefit of the defence of insanity in .
law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act.
29. Section 84 of the Indian Penal Code recognizes the defence of insanity. It is defined as under:-
"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."
30. A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law."
27. Their Lordships of the Hon'ble Supreme Court in Hari Singh v. State of Madhya Pradesh 2008 (16) SCC 109 have held that section 84 of the Indian Penal Code lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of unsoundness of mind in the Indian Penal Code. Courts have, however, mainly treated this expression as equivalent to insanity. Their Lordships have further held that every person, who is mentally ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 26 diseased, is not ipso facto exempted from criminal responsibility. Their Lordships have held as under:
"5. Section 84 lays down the legal test of responsibility in .
cases of alleged unsoundness of mind. There, is no definition of "unsoundness of mind" in the IPC. Courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on an accused to prove his insanity, which arises by virtue of Section 105 of the Indian Evidence Act, 1972 (in short the `Evidence Act') and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. (See Dahyabhai v. State of Gujarat AIR 1964 SC 1563). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarises them as follows:
"Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment ; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detections whether, after his arrest, he offered false excuses and made false statements. All facts of this sort are material as bearing on the test, which Bramwall, submitted to a jury in such a case :::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 27
Would the prisoner have committed the act if there had been a policeman at his elbow ? It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is, what Mayne calls, .
"inferential insanity".
6. Under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts.
7. There are four kinds of persons who may be said to be non compos mentis (not of sound mind), i.e., (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4.) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 28 intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hala's .
Pleas of the Grown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are- committed while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.
8. Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).
9. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of: exemption from criminal responsibility. Stephen in `History of the Criminal Law of England, Vo. II, page 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 29 woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to .
apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section This Court in Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523 (SC)), held that the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have necessary mens rea for the offence. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case (1843) 4 St. Tr. (NS) 847. Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 30 a legal act ; but merely a cessation of the violent symptoms of the disorder is not sufficient.
10. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, .
odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section."
28. rTheir Lordships of the Hon'ble Supreme Court in Elavarasan V. State, AIR 2011 SC 2816 have held that while determining whether the accused is entitled to the benefit of Section 84 I.P.C. the Court has to consider the circumstances that proceeded, attended or followed the crime but it is equally true that such circumstances must be established by credible evidence.
Their Lordships have held as under:
"21. From the deposition of the above two witnesses who happen to be the close family members of the appellant it is not possible to infer that the appellant was of unsound mind at the time of the incident or at any time before that. The fact that the appellant was working as a government servant and was posted as a Watchman with no history of any complaint as to his mental health from anyone supervising his duties, is significant. Equally important is the fact that his spouse Smt. Dhanalakshim who was living with him under the same roof ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 31 also did not suggest any ailment afflicting the appellant except sleeplessness which was diagnosed by the doctor to be the effect of excessive drinking. The deposition of PW3, Valli that her son was getting treatment for mental disorder is also much too vague and deficient for this Court to record a .
finding of unsoundness of mind especially when the witness had turned hostile at the trial despite multiple injuries sustained by her which she tried to attribute to a fall inside her house. The statement of the witness that her son was getting treatment for some mental disorder cannot in the circumstances be accepted on its face value, to rest an order of acquittal in favour of the appellant on the basis thereof. It is obvious that the mother has switched sides to save her son from the consequences flowing from his criminal act.
25. What is important is that the depositions of the two doctors examined as court witnesses during the trial deal with the mental health condition of the appellant at the time of the examination by the doctors and not the commission of the offence which is the relevant point of time for claiming the benefit of Section 84 I.P.C. The medical opinion available on record simply deals with the question whether the appellant is suffering from any disease, mental or otherwise that could prevent him from making his defence at the trial. It is true that while determining whether the accused is entitled to the benefit of Section 84 I.P.C. the Court has to consider the circumstances that proceeded, attended or followed the crime but it is equally true that such circumstances must be established by credible evidence. No such evidence has been led in this case. On the contrary expert evidence comprising the deposition and certificates of Dr. Chandrashekhar of JIPMER unequivocally establish that the appellant did not suffer from any medical symptoms that could interfere with his capability of making his defence. There is no evidence suggesting any mental derangement of the appellant at the time of the commission of the crime for neither the wife nor even his mother have in so many words suggested any unsoundness of mind leave alone a mental debility that would prevent him from understanding the nature and consequences ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 32 of his actions. The doctor, who is alleged to have treated him for insomnia, has also not been examined nor has anyone familiar with the state of his mental health stepped into the witness box to support the plea of insanity. There is no gainsaying that insanity is a medical condition that cannot for .
long be concealed from friends and relatives of the person concerned. Non- production of anyone who noticed any irrational or eccentric behaviour on the part of the appellant in that view is noteworthy. Suffice it to say that the plea of insanity taken by the appellant was neither substantiated nor probablised.
26. Mr. Mani, as a last ditch attempt relied upon certain observations made in Mahazar Ex.P3 in support of the argument that the appellant was indeed insane at the time of commission of the offences. He submitted that the Mahazar referred to certain writings on the inner walls of the appellant's house which suggested that the appellant was insane. A similar argument was advanced even before the Courts below and was rejected for reasons which we find to be fairly sound and acceptable especially when evidence on record establishes that the appellant was an alcoholic, who could scribble any message or request on the walls of his house while under the influence of alcohol. The Courts below were, therefore, justified in holding that the plea of insanity had not been proved and the burden of proof cast upon the appellant under Section 105 of the Evidence Act remained undischarged. The High Court has also correctly held that the mere fact that the appellant had assaulted his wife, mother and child was not ipso facto suggestive of his being an insane person."
29. In the instant case, the plea of insanity is not available to the accused under section 84 of the Indian Penal Code, as he knew what he was doing since he ran away from the spot and he was noticed by PW-5 Yashoda ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP 33 Devi putting up his cloths. Even PW-1 Dr. Aman Rana has not noticed any abnormality in his behaviour. The medical evidence produced is not sufficient to prove that .
at the time of commission of rape, accused was medically insane and incapable of understanding the nature of act performed by him. Hence, his defence under section 84 of the Indian Penal Code is not proved.
30. Accordingly, there is no merit in the present r to appeal and the same is dismissed.
(Justice Rajiv Sharma), Judge.
(Justice Sureshwar Thakur), Judge.
1.5.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:05:36 :::HCHP