Uttarakhand High Court
Singh vs State Of Uttarakhand on 9 July, 2024
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE SRI JUSTICE ALOK KUMAR VERMA
CRIMINAL REFERENCE NO. 04 OF 2021
In the matter of Capital Punishment awarded to Harmeet
Singh
Versus
State of Uttarakhand ......Respondent.
With
CRIMINAL APPEAL NO. 440 OF 2021
Harmeet Singh ........Appellant.
Versus
State of Uttarakhand ......Respondent.
Counsel for the Appellant : Ms. Manisha Bhandari, Mr.
Akshay Pradhan, Mr. Dhruv
Chandra, learned counsels with
Ms. Pushpa Joshi, learned Senior
Counsel (Amicus Curiae).
: Ms. Lovely Grover, learned legal-
aid counsel for the appellant.
Counsel for the Respondent : Mr. J.S. Virk, learned Deputy
Advocate General with Mr.
Rakesh Kumar Joshi, learned
Brief Holder.
Counsel for the Complainant : Mr. B.D. Jha and Ms. Priyanka
Jha, learned counsels.
Judgment Reserved on: 04.07.2024
Judgment Delivered on: 09.07.2024
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Ms. Ritu Bahri) The appellant- Harmeet Singh has come up in appeal against the judgment and order dated 04/05.10.2021, whereby he has been convicted for the offence punishable under Sections 302, 307 and 316 IPC. He has been awarded death sentence also directed to pay fine of Rs. 50,000 under 2 Section 302 IPC. Aforesaid convict has been further convicted under Section 307 IPC and sentenced to imprisonment for 10 years and also directed to pay fine of Rs 25,000/- and also convicted under Section 316 IPC and sentenced to imprisonment for 10 years and also directed to pay fine of Rs 25,000/-.
2. Learned counsel for the appellant, at the outset, does not want to challenge the judgment rendered by the Trial Court on merits. The appellant has committed the murder. She has stated that there were sufficient evidence to prove that the appellant had committed the murder of Jai Singh (father of the accused), Ms. Kulwant Kaur (step mother of the accused), Ms. Harjeet Kaur (adopted daughter of Jai Singh), and Ms. Sukhmani (daughter of Ms. Harjeet Kaur).
3. Briefly, the facts of the case are that it was Diwali festival in 2014. At that time, Ms. Harjeet Kaur was 8-9 months pregnant and had come to the house of Jai Singh along with her son Kanwal and daughter Sukhmani. On the night of Diwali, everyone burst crackers and slept.
4. On 24.10.2014, at around 10:30 AM, P.W.3 Raji Devi informed P.W.1 Ajit Singh, who lodged the First Information Report, that Harmeet Singh (accused) was not opening the gate and was refusing to let her do the household work. P.W.1 Ajit Singh called his uncle Jai Singh, 3 and on the insistence of P.W.1 Ajit Singh, the accused Harmeet Singh opened the gate and P.W.3 Raji Devi went inside the house to work, and came out screaming "khoon khoon". After hearing the screaming of P.W.3 Raji Devi, P.W.1 Ajit Singh and his wife went inside the house of Jai Singh, and they found Ms. Kulwant Kaur and Ms. Harjeet Kaur were lying dead, soaked in blood, in the bedroom adjacent to the lobby. The dead body of the little girl Sukhmani was lying on the bed, drenched in blood. Blood soaked body of Jai Singh was lying face down on the floor in the room of the accused Harmeet Singh. The accused Harmeet Singh was standing there and P.W.4 Kanwal come from behind Harmeet Singh in an injured state. P.W.1 Ajit Singh picked up Kanwal and informed about the incident on 100 and 108 from his mobile. On being asked, the victim Kanwal told P.W.1 Ajit Singh that Harmeet uncle (accused) killed his maternal grandfather (Jai Singh), maternal grandmother (Ms. Kulwant Kaur), mother (Ms. Harjeet Kaur) and sister Sukhmani, and also stabbed him from behind.
5. After registration of FIR (Exhibit A-9), tehrir (Exhibit A-1) was submitted at P.S. Cantt on 24.10.2014 at 11:45 AM. Investigating Officer P.W.21 Vinod Kumar Jetha went to the spot of incident and took possession of some blood from the blood clots spread on the floor and a piece of blood stained bedsheet, sofa cloth, and pillow cover and 4 prepared memo as Exhibit A-52, Exhibit A-54 respectively. Accused Harmeet Singh was arrested on 24.10.2014 in the Farm near Sub Area Road (Bindal Tiraha, near Dehradun) at 14:00 PM.
6. After carrying out the investigation, charge-sheet (Exhibit A-60) was presented against the accused Harmeet Singh by the Investigating Officer in the Court of Chief Judicial Magistrate, Dehradun.
7. The Chief Judicial Magistrate, Dehradun handed over the case to the Sessions Court, Dehradun for trial. On 03.02.2015, the Court summoned the accused Harmeet Singh, and he was charged under Sections 302, 307 and 316 IPC. The accused Harmeet Singh denied the charges, and demanded a trial.
8. The prosecution examined the following witnesses:-
Prosecution Name of the Evidence Given by Witness Witness Witness No. (PW No.)
1. Ajit Singh Complainant
2. Dr. Anil Arya Doctor who conducted post-mortem of the deceased Jai Singh, deceased Smt. Kulwant Kaur, deceased Harjit Kaur and deceased Sukhmani.
3. Raji Devi Witness who was the first to reach at the spot and to give information to PW 1.
4. Kanwal Victim and the only eye witness of the incident
5. Const. Raghubir Wrote FIR (Ka-9) and GD.
Singh
6. Parvez Alam Witness of preparation to commit incident by the 5 accused.
7. Head Const. Smt. Witness who submitted the Pushpa Arya evidence collected during investigation from Police Station Cantt to Forensic Science Laboratory, Dehradun forb scientific testing.
8. Arvinder Singh Husband of the deceased Smt. Harjeet Kaur and father of victim Kanwal.
9. SI Sandhya Rani Witness to Panchnama of Smt. Kulwant Kaur and Smt. Sukhmani
10. Dheeraj Mani Baluni Witness to arrest of the accused and to recovery of Knife and clothes on behest of the accused.
11. Palvinder Singh Witness to recovery of Knife and clothes on behest of the accused.
12. Sanjit Kumar Witness to arrest of the accused and to recovery of Knife and clothes on behest of the accused.
13. Manmohan Singh Witness to recovery of Knife and clothes on behest of the accused.
14. Dr. HS Bhatia Doctor who did medical examination of Victim Kanwal.
15. Const. Rajina Bano Witness to Panchnama of Smt. Kulwant Kaur and Smt. Sukhmani and also took their dead body to Hospital for Post-Mortem.
16. Const. Pravesh Witness who took accused Kumar to the Doon Hospital for medical examination
17. Smt. Uma Madhwal Witness to Panchnama of the deceased Smt. Harjeet Kaur
18. Dr. Manoj Kumar A Specialist who prepared Agarwal Forensic Examination Report (Ka-49)
19. Dr. Rahul Joshi Doctor who conducted medical examination of the accused after his arrest.
20. Dr. N.K. Mishra Doctor who collected blood sample of the accused for DNA Test.
21. Vinod Kumar Jetha Investigation Officer
9. To ensure that the accused Harmeet Singh did not suffer from any mental immaturity/ insanity, the Court 6 examined Surendra Kumar Dhalwal as C.W.1, Dr. J.S. Bisht as C.W.2, and Dr. Mohd. Shah Hasan as C.W.3.
10. The prosecution also placed on record the following evidence:-
Exhibit Ka-1 Tehrir
Exhibit Ka-2 Post-mortem report- Smt. Kulwant Kaur
Exhibit Ka-3 Post-mortem report- Jai Singh
Exhibit Ka-4 Post-mortem report- Smt. Harjeet Kaur
Exhibit Ka-5 Post-mortem report Baby Sukhmani
Exhibit Ka-6 Sample of seal- Forensic Science Laboratory
Dehradun
Exhibit Ka-7 Statement u/s 164 Cr.P.C of Raji Devi
Exhibit Ka-8 Statement u/s 164 Cr.P.C of Kanwal
Exhibit Ka-9 First Information Report
Exhibit Ka-10 Copy of G.D. No.21- First Information Report
dated 24.10.2014 at 11:15 A.M.
Exhibit Ka-11 Copy of G.D. 31- Entry of accused arrested in
police station Cantt and 7 bundles of goods including sample stamp.
Exhibit Ka-12 Copy of G.D. 35- Return of accused Harmeet and 17 Singh after medical examination and treatment.
Exhibit Ka-13 Copy of G.D. 33- admission medical report of and 16 victim P.W. 4 Kanwal (dated 22.10.2014, 17:55 p.m.) Exhibit Ka- 14 Copy of G.D. 29- Departure of Constable Anuj Kumar and Constable Ajay Muyal for medical examination of P.W.4 (24.10.2014, 14:00 P.M.) Exhibit Ka-15 Copy of G.D. 32- Departure of S.I. Sashibhushan Joshi for medical examination and treatment of accused Harmeet Singh.
Exhibit Ka-18 Copy of G.D.6- Arrival of Constable Praveen Kumar, Constable Virendra Singh, Constable Sudhir Kumar and Head Constable Razina Bano, and submission of post-mortem report 7 and sealed clothes of deceased Jai Singh, deceased Kulwant Kaur, deceased Harjeet Kaur and Sukhmani (25.10.2014, 03:45 A.M.). Exhibit Ka-19 Copy of G.D. 41- Submission of blood stained clothes of victim Kanwal and fard (25.10.2014, 08:20 P.M.) Exhibit Ka-20 Copy of G.D.16- Departure of Head Constable Pushpa Arya for investigation of clothes of deceased, chappal, knife and clothes recovered from accused, blood sample of accused Harmeet Singh, objects recovered from the place of incident by FSL (31.10.2014, 09:45 A.M.) Exhibit Ka-21 Copy of G.D.34- Arrival of Head Contable Pushpa Arya from FSL (31.10.2014, 06:15 P.M.) Exhibit Ka-22 Form for filing bundle of goods in Forensic Science Laboratory Exhibit Ka-23 Panchnama- deceased Harjeet Kaur Exhibit Ka-24 Fard of taking possession of the clothes worn by the victim Kanwal Exhibit Ka-25 Panchnama- deceased Kulwant Kaur Exhibit Ka-26 Police form 13- deceased Kulwant Kaur Exhibit Ka-27 Sample stamp- panchnama deceased Kulwant Kaur Exhibit Ka-28 Sketch of dead body of deceased Kulwant Kaur Exhibit Ka-29 Report of C.M.O of deceased Kulwant Kaur Exhibit Ka-30 Report of R.I. of deceased Kulwant Kaur Exhibit Ka-31 Panchnama- deceased Sukhmani Exhibit Ka-32 Sample stamp- panchnama of deceased Sukhmani Exhibit Ka-33 Police form 13- deceased Sukhmani Exhibit Ka-34 Sketch of the dead body of deceased Sukhmani Exhibit Ka-35 Report of C.M.O- deceased Sukhmani Exhibit Ka-36 Report of R.I.- deceased Sukhmani Exhibit Ka-37 Fard of taking possession of blood-stained chappal from accused Harmeet Singh Exhibit Ka-38 Fard of taking possession of blood-stained 8 clothes and knife at the instance of accused Harmeet Singh Exhibit Ka-39 Panchnama- deceased Jai Singh Exhibit Ka-40 Police form 13- deceased Jai Singh Exhibit Ka-41 Sketch of the dead body of deceased Jai Singh Exhibit Ka-42 Report R.I.- deceased Jai Singh Exhibit Ka-43 Report C.M.O- deceased Jai Singh Exhibit Ka-44 Stamp seal- panchnama of deceased Jai Singh Exhibit K-45 Medical report of victim Kanwal Exhibit Ka-46 Report R.I. - deceased Harjeet Singh alias Honey Exhibit Ka-47 Report C.M.O- deceased Harjeet Singh alias Honey Exhibit Ka-48 Stamp seal- Panchnama of deceased Harjeet Singh alias Honey Exhibit Ka-49 Forensic Science Laboratory Report Exhibit Ka-50 Medical report of accused Harmeet Singh Exhibit Ka-51 Site plan Exhibit Ka-52 Fard of taking possession of blood clots spread at the place of incident Exhibit Ka-53 Sample seal- possession of blood clots Exhibit Ka-54 Fard of taking possession of various blood-
stained clothes at the crime scene- bed sheet, sofa covers, pillow cover.
Exhibit Ka-55 Sample seal- Exhibit Ka-54 Exhibit Ka-56 Arrest/ Information memo of accused Harmeet Singh Exhibit Ka-57 Sample seal- chappal taken from the accused Harmeet Singh Exhibit Ka-58 Sample seal- seal of knife and clothes recovered at the instance of accused Harmeet Singh Exhibit Ka-59 Sample seal- possession of blood stained clothes worn by victim Kanwal at the time of incident Exhibit Ka-60 Charge sheet Exhibit Ka-61 Copy of malkhana register of Police Station Cantt.
9
11. After prosecution evidence was over, the accused Harmeet Singh gave his statement under Section 313 of Code of Criminal Procedure. He admitted that Ms. Harjeet Kaur @Honey had been given in adoption by P.W.1 Ajit Singh to his father Jai Singh (deceased). He also admitted that Ms. Harjeet Kaur had come to Jai Singh's place during Diwali. When P.W.1 Ajit Singh called Jai Singh on his mobile, he had picked up the call. The dead bodies of Jai Singh, Ms. Kulwant Kaur, Ms. Harjeet Kaur and Sukhmani were lying inside the house. He also stated that on the day of Diwali, Jai Singh, Ms. Kulwant Kaur, Ms. Harjeet Kaur, Sukhwani, Kanwal and the accused (Harmeet Singh) were at the spot, and they had burst firecrackers along with P.W.4 Kanwal. He further stated that he is innocent and his uncle Pappu, his son Jaspreet Singh and brother-in-law Arvinder Singh together had trapped him, and the murder was committed by Jaspreet Singh. No evidence was led on file by the accused to prove this statement.
12. The evidence given by P.W.4 Kanwal, who was the eye-witness, coupled with DNA from blood found on knife, and the blood found on the clothes of deceased Harjeet Kaur matched with the blood sample of accused Harmeet Singh. During trial, the blood found on the shirt of the accused matched with the blood found on the clothes of deceased Jai Singh and Ms. Kulwant Kaur. DNA of blood found on the lower 10 article of accused Harmeet Singh (Exhibit A-28), DNA of pillow cover and blood sample of the accused also matched.
13. The Lower Court further proceeded to examined Forensic Examination Report (Exhibit A-49), blood sample of accused Harmeet Singh (Exhibit A-31), and as per Dr. N.S. Mishra (P.W.20), who proved the fact that the blood samples of accused Harmeet Singh was taken on the orders of the Court. Therefore, this fact has been proved that in the Forensic Examination Report (Exhibit A-49), due to a clerical/ typing error, Harjeet has been written in place of Harmeet in the brackets in front of Exhibit A-31. Forensic Examination Report cannot be disbelieved merely because of this clerical error.
14. The doctor, who medically examined the accused, i.e. P.W.19 Dr. Rahul Joshi, proved the medical examination report (Exhibit A-50). During medical examination, injuries were found on the body of the accused Harmeet Singh. These injuries were relevant to the incident, which took place on 24.10.2014. As per the evidence, Dr. Rahul Joshi, on 24.10.2014, when he was working as Emergency Medical Officer in Doon Hospital, at about 5:50 PM, Sub Inspector Shashi Bhushan Joshi from Cantt Police Station of Dehradun brought Harmeet Singh before him for medical examination. This doctor further stated that during general examination, it was found that the pulse rate of the patient (accused- 11 Harmeet Singh) was 10/min. Blood Pressure 130/80 mmHg, and body temperature was normal. No abnormality was found on external examination of the chest and abdomen, heart sound was normal, and pupils were also normal on external examination, and some injuries could have been caused by sharp objects.
15. This fact has been proved in the above discussion that on 23/24.10.2014, Jai Singh, Ms. Kulwant Kaur, Ms. Harjeet Kaur @Honey, Sukhmani, P.W.4 Kanwal and the accused Harmeet were present. There was no one except him. P.W.4 Kanwal has proved this fact through his evidence and the accused has accepted this fact in his statement under Section 313 Cr.P.C. This fact has also been proved that the next day on 24.10.2014, the accused opened the door of the said residence. On opening the door, Jai Singh, Ms. Kulwant Kaur, Ms. Harjeet Kaur @Honey and Sukhmani were found dead. Kanwal (a 7 year old at that time) was stabbed and accused Harmeet Singh was alive. There were minor injury on his palm and face. In such a situation, the judicial precedent held by the Hon'ble Supreme Court regarding "last seen theory" in the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, is applicable, which reads as under:-
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime 12 becomes impossible. Even in such a case the courts should look for some corroboration."
16. Investigating Officer- P.W.21 Vinod Kumar Jetha has proved cartography (Exhibit A-51), charge-sheet (Exhibit A-7). The site map (Exhibit A-51) proves the fact that dead bodies of Ms. Kulwant Kaur and Ms. Harjeet Kaur @Honey were found in the bedroom adjacent to the lobby at X 1, 2. The dead body of deceased Sukhmani was found on the bed at point X3 bedroom and the body of Jai Singh was found at point X4, which is the outer room of accused Harmeet Singh. P.W.1 Ajit Singh and P.W.4 through their evidence have proved the existence of dead bodies of the deceased at these places. Accordingly, the graphical map Exhibit A-51 proves that the dead bodies were found at the spot and at various placed of the spot.
17. Hence, the Trial Court has convicted the accused Harmeet Singh, as there were sufficient evidence to prove the that he was at home on Diwali evening with family members, and all blood samples taken from the knife, clothes of the deceased, and clothes of the accused had matched, coupled with the evidence given by eye-witness P.W.4 Kanwal.
18. Hence, during investigation, the prosecution had led sufficient evidence to show that the appellant- Harmeet Singh was a person who had committed the murder. 13
19. Before the Trial Court, even three doctors, namely, Dr. Surendra Kumar Dhalwal, Dr. J.S. Bisht and Dr. Mohd. Shah Hassan were examined as court witnesses. As per the evidence given by Dr. Mohd. Shah Hassan- C.W.3, the appellant- Harmeet Singh was taking medicine for mental illness since 28.10.2014 when he was taken into custody. However, the accused- Harmeet Singh was not found to be mentally ill at any stage. The accused- Harmeet Singh was a completely normal person and was leading his daily routine normally. They did say that he was suffering from some mental illness.
20. As far as evidence is concerned, learned counsel for the appellant does not want to argue the matter on merits, as there were sufficient evidence to prove that it was Harmeet Singh, who had committed the murder in the house, coupled with the medical evidence, i.e. DNA, coupled with other evidence on record.
21. Learned counsel for the appellant restricts her prayer only to the death reference, and with regard to the evidence that the appellant was suffering from mental illness and under Section 84 of the IPC, the appellant can be acquitted.
22. A perusal of the judgment further shows that after examining C.W.1 Surendra Kumar Dhalwal, C.W.2 Dr. J.S. 14 Bisht, and C.W.3 Dr. Mohd. Shah Hassan, investigation was also conducted at AIIMS, Rishikesh regarding the accused being a mental patient. Investigation report 95A/2 and 96B are present on the file. The details in these forms are as follows:-
"Mr. Harmeet Singh, age 31 years was kept hospitalized from 27.01.2021 to 12.02.2021. During ward stay he had normal self-care and daily routine without any assistance or prompting. He carried out basic activities of daily living independently. He was able to comprehend and respond appropriately during interactions with the nursing staff and clinical team. He was continued on medication, Olanzapine 12.5 mg/day, as per past treatment details obtained from the Medical Officer at Dehradun jail.
His ward observation and serial mental status examinations revealed that he was oriented to time, place and person. His judgment ability was found to be intact during the course of hospitalization.
During his stay and on serial mental status exam patient's account reveals that he is aware of the charges under which he was arrested, was able to name his legal counsel, understands the nature of the court proceedings and the consequences of his testimony.
Routine investigations were within normal limit. Impression: While taking Tab. Olanzapine 12.5 mg/day, Mr. Harmeet Singh appeared to take care of activities of daily living independently, and was oriented to be surrounding/ environment. No sign of impaired judgment could be elicited."
23. The Court came to the conclusion that as per the investigation report 95A/2 and 96B, mere taking medicine Olanzapine 12.5mg/day, does not prove that the accused was a mental patient. Due to mere precaution taken by the Court, the mental condition of the accused was tested and it was found that the accused is a normal person and is capable of defending himself by understanding the outcome of the case.
24. Learned counsel for the appellant has argued that she is not challenging the judgment on merits, however, she 15 is restricting her prayer to the benefit, which can be given to the appellant- accused for mental illness under Section 84 of IPC.
25. Section 84 of the Indian Penal Code, 1860, is 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."
26. The Supreme Court in Devidas Loka Rathod vs. State of Maharashtra, (2018) 7 SCC 718, examined a case where the accused was seeing the benefit of exception under Section 84 IPC on account of the fact that he was suffering from a mental condition at the time of incident when murder took place. The Supreme Court in this case was examining a case where on account of a previous history of insanity of the accused, the Investigator did not subject the accused to medical examination immediately. No evidence was placed before the Court and this infirmity in the prosecution case was being examined by the Supreme Court.
27. As per the defence evidence given by D.W.1 and D.W.2, sister and mother of the accused-appellant, he had to be tied up at times and was unable to take care of himself, including clothing on his person. The defence witnesses also stated with respect to his treatment by a Psychiatrist. The Supreme Court further observed that the accused and his 16 family were poor people and can hardly be expected to meticulously preserve medical papers or lead expert evidence. In the facts of the case, the FIR was registered on the same day when the incident took place, i.e., 26.09.2006. However, he was taken into custody on 28.09.2006, because he was not keeping well and he had been admitted in hospital. The Investigating Officer (P.W.14) did not place on record any evidence with regard to admission of the appellant before has arrest. The trial court as well as the appellate court did not dwell into the medical records. In this backdrop, a doubt was created in the mind of the Court, and the appellant was given the benefit of exception under Section 84 IPC, and he was acquitted.
28. The Supreme Court had referred to the doctrine of burden of proof in the context of the plea of insanity. The said doctrine in the context of plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar Vs State of Gujarat, (1964) 7 SCR 361:-
"(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 Section 84 of the Penal Code: the accused may rebut it by placing before the court all the relevant evidence, oral, documentary or circumstantial, but the burden of proof upon him is n 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 17 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."
29. In Paras 10, 11, 12 and 13 of Devidas Loka Rathod case (supra), the Supreme Court has observed as under:
"10. The law undoubtedly presumes that every person committing an offence is same and liable for his acts, though in specified circumstances it may be rebuttable. The doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar Vs State of Gujarat, AIR 1964 SC 1563 :
"(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 Section 84 of the Penal Code: the accused may rebut it by placing before the court all the relevant evidence, oral, documentary or circumstantial, but the burden of proof upon him is n 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."
11. Section 84 of the IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as 18 on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on the preponderance of probability, as observed in Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 495, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602, as follows:-
"19....Once, a person is found to be suffering from mental disorder or mental deficieny, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidene, the person concertned would be entitled to seek resort to the general exceptions from criminal liability."
12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal Vs State of M.P. (1970) 3 SCC 533, as follows:
"2.It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this ties on the accused. In D.G. Thakker V. State of Gujarat, (1964) 7 SCR 361 it was laid down that "there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code, the accused may rebut it by placing before the Court all the relevant evidence- oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings".
13. If from the material placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh Vs State of U.P., (1990) 3 SCC 190."
19
30. The appellant in that case was being given antipsychotic drugs such as tablet Haloperidol, tablet Olanzapine and tablet Diazepam, and the effect of these medicines has been considered and examined in Para 16 of Devidas Loka Rathod case (supra). The same reads 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.
(ii) Olanzapine is an antipsychotic medication that affects chemicals in the brain. Olanzapine is used to treat the symptoms of psychotic conditions such as schizophrenia and bipolar disorder (manic depression).
(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 claiming the brain and nerves. Diazepam belongs to a class of drugs known as benzodiazepines.
(iv) Trinicalm Forte tablet is a combination of three medicines; Chlorpromazine, Trihexyphenidyl and Trifluoperazine, Chlorpromazine is a typical antipsychotic. It works by blocking the action of dopamine, a chemical messenger in the brain that affects thoughts and mood. Trihexyphenidyl is an anticholinergic which works on the nervous system and corrects some of the side effects occurring during antipsychotic treatment. Trifluoperazine is a typical antipsychotic. It works by blocking the action of dopamine, a chemical messenger in the brain that affects thoughts and mood.
(v) Trinicalm Plus 5 mg/2 mg tablet is a combination of two medicines. Trifluoperazine and Trihexyphenidyl. Trifluoperazine is a typical antipsychotic. It works by blocking the action of a chemical messenger (dopamine) in the brain that affects thoughts and mood. However, it may cause side effects such as involuntary movements (shaking of hands, muscle spasms). Trihexyphenidyl is added to treat and prevent these side effects."20
31. After examining the above said, the Supreme Court further observed that the Court had a duty to consider the nature of evidence which is lead by the prosecution and if such evidence is not examined in the right perspective, and this evidence has to be examined in the right perspective as observed in Rama Vs State of Rajasthan, (2002) 4 SCC
571. In this judgment, the Supreme Court has observed as under:
"4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final haring. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."
32. Thereafter, the Supreme Court proceeded to acquit the accused giving him benefit of exception 84 IPC. Subsequently, keeping in view his mental medical condition and to save him from vagaries and receives proper care, a direction was given to the District Legal Services Authority, Akola to do the needful under Article 21 of the Constitution of India.
33. Prakash Nayi alias Sen Vs State of Goa, (2023) 5 SCC 673, is another case where the provisions of exception under Section 84 IPC were being sought on the ground of unsound mind at the time of committing murder. The Supreme Court examined the case and observed that there was a previous record of medical treatment of the accused as in-patient of hospital for schizophrenia. The 21 Government doctor, who had examined the accused under orders of the Trial Court had also deposed that the accused was suffering from schizophrenia and was unfit to stand trial. However, after treatment, doctor certified accused to be fit for trial. Both the court below convicted the accused for the offence punishable under Section 302 IPC, ignoring evidence of government doctor, condition of accused and other facts and circumstances relating to accused's unsoundness of mind. While examining the mental illness because of schizophrenia, a reference was made to the Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology.
34. In Para 18 of the Prakash Nayi @ Sen (supra), the Supreme Court observed as under:
18. We find adequate materials on the assessment and evaluation of legal and medical insanity, which are totally different from each other. We shall furnish the following relevant material on medical jurisprudence: Jaisingh P. Modi, A Textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 938:
"Ascertainment of Mental Illness: Clinical assessment and Questions that would require to be addressed. -Forensic psychiatry attempts to help Courts determine the mental condition of the accused to determine whether the person could have intended to commit the crime and whether he is in a fit state to stand the trial. Medical insanity and legal insanity are not necessarily congruent. A mental illness that requires institutional care or administration of therapeutic care for medical insanity may not still be sufficient insulate the person from consequences of a criminal act and punishment if s/he is not legally insane. The assessment shall be to elicit such information as the law qualifies the general exception for proof of culpability under Section 84 of IPC. Is the accused mentally unsound? Is the mental unsoundness such that s/he is not capable of knowing (i) the nature of act; or (ii) the act is wrong, or (iii) contrary to law? These questions are directly related to testing the requirement of law. Is 22 s/he capable of understanding the nature of proceedings in Court and stand trial? This shall be necessary to ensure that he has sufficient ability to consult with is counsel instruct him for a fair trial and defence. Every accused is bound to know the nature of proceedings against him/her. What was the mental condition of the accused, when the crime took place? Is it likely that the accused is malingering mental illness? The answers will point out to fixing the criminal responsibility to the acts attributed to him/her. Post- trial care may issue questions like: What is prognosis for cure for the mental illness? Will s/he be dangerous not to be let at large? In many a foreign jurisdiction, the questions may vary depending on the nature of proof of insanity and its intensity that is relevant under law to appraise criminal responsibility for the act: Could there have been an irresistible impulse to commit the act charged with? Was the mental condition so severe that s/he had no capacity to control his/her behaviour? Was s/he under any form of delusion to inflict the criminal assault to fend off falsely perceived personal harm or injury?
The evaluation process.-The evaluation process generally includes, broadly, three major components or sources of data: (a) an interview with the accused (b) forensic assessment instruments, and (c) third party information including (but by no means limited to) collateral reports, witness statements, victim statements, police reports, and records of various sorts (i.e., mental health, treatment, school, medical, crime scene, etc.). Along with these sources, the role of delusions in evaluations of criminal responsibility (as the nature and quality of the accused 'delusionality') is often central in determining the extent of impairment in mental state at the time of the offence, especially in contested cases that may have a bearing on limiting responsibility if not completely exonerating him from the offence charged with. The role of the expert is not to present legal conclusions or formal psychopathological diagnoses. Rather, the role of examiner, as expert, is to import state of-the-art/science knowledge about the existence of various psychopathological conditions and their relationship to various behavioural, perceptual, cognitive and judgmental capacities into the legal/moral decisional process."
35. Thereafter, the Supreme Court proceeded to examine the knowledge of experts under the relevant text available in Para 19. It was referred as under:
SCHIZOPHRENIA
19. Now, we shall come to the mental illness caused by Schizophrenia. We do not wish to go into the 23 said issue as it being one within the exclusive knowledge of the experts, except to quote the relevant text available:
19.1. Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 922:
"(ii) Schizophrenia. -Kraepelin (Emil Kraepelin, German psychiatrist.), in 1896, named this disease as 'dementia praecox'. In 1911, Eugen Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.) introduced the term 'schizophrenia' which literally means disintegration of mind. The term dementia praecox was changed because it implied that the disease always ended in dementia, which it did not. The term praecox meant that the disease developed at the time of puberty or adolescence, but in many cases developed outside that period.
Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people."
19.2. Elizabeth A. Martin (2007), "Oxford Concise Medical Dictionary (7th edition)", pg. 642:
"Schizophrenia n. a severe *mental illness characterised by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Positive symptoms, such as *delusions and *hallucinations (especially of voices), are common, and any *Schneiderian first-rank symptoms are particularly indicative of the illness. Negative symptoms include social withdrawal, impairment of ego boundaries, and loss of energy and initiative. Schizophrenia is diagnosed only if symptoms persist for at least one month. The illness can spontaneously remit, run a course with infrequent or frequent relapses, or become chronic. The prognosis has improved with *anti-psychotic drugs and with vigorous psychological and social management and rehabilitation. The many causes include genetic factors, environmental stress, and possibly illicit drug use."
19.3. American Psychiatric Association 2013, Diagnostic and Statistical Manual of Mental Disorders :
DSM-5, 5th Edn, American Psychiatric Association, Washington DC. pg. 87:
"Schizophrenia spectrum and other psychotic disorders include schizophrenia, other psychotic disorders, and schizotypal (personality) disorder. They are defined by abnormalities in one or more of the following five domains: delusions, 24 hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms."
36. After referring to the above said information in the text books, the Supreme Court further observed that the appellant-accused had attacked the deceased at a store in which he was working, which belonged to the brother of his grandfather, who did not have any issue. There was no provocation and premeditation. The occurrence took place on 14.05.2004, at 06:00 A.M. It was seen by P.W.2. The accused after taking the material object, came back to the shop and left it there. He once again walked to the bus stand and was sitting on a chair. He neither moved away from the said place nor made any attempt to leave. The evidence of the treatment given to the accused at GMC Hospital, Bhiwani in the State of Haryana prior to the occurrence from 17.11.2003 till 26.11.2003 was that he was suffering from anxiety neurosis with reactive depression and had symptoms of acid peptic disease and mild hypertension. The treatment given to him was akin to one meant for schizophrenia, and in this backdrop, he was prescribed the medicine 'Thioril'.
37. At the stage of grant of bail A.W.2 was examined to show that the accused was taking the treatment earlier at GMC Hospital at Bhiwani. A.W.1 is the doctor who examined the accused after the occurrence on the orders of the trial court. She deposed that the accused was indeed suffering 25 from chronic schizophrenia. Thereafter, D.W.1 again stated that the accused was suffering from schizophrenia. The medical evidence was not taken into consideration and the only evidence taken was that he could stand trial. The Court of Sessions and High Court convicted the accused on merits.
The plea of insanity was also taken. However, it was rejected on the ground that P.W.6, the brother of the grandfather of the appellant, did not find any abnormality and that his mother has not been examined, and P.W.10 being the doctor, who physically examined the accused after the incident, stated that the accused was mentally well. However, the evidence given by A.W.1 and D.W.1 was brushed aside, and also the evidence of D.W.2, who had stated about the earlier treatment received by the accused. The evidence of A.W.2 was not even taken note of, and in this backdrop, the Supreme Court set aside the order of the trial court of conviction and sentence of the appellant punishable under section 302 IPC, and the judgment and order of the High Court affirming the same were set aside, and the accused- appellant was acquitted of all the charges.
38. Recently, the Supreme Court in the case of Rupesh Manger (Thapa) Vs State of Sikkim, (2023) 9 SCC 739, was again examining a case where benefit of exception 84 IPC was being sought by the accused. In this case the appellant after arrest was medically examined and found that 26 he appeared to be clinically under the influence of some psychotropic substance. He was taking tablet Lorazepam which is a psychotropic substance apart from being an anxiolytic agent. The trial court had acquitted the convict on the basis of the above said evidence. However, the High Court reversed the finding of acquittal and convicted of the accused on the re-appreciation of evidence by holding that the trail court erred in extending the benefit of Section 84, without even recording a finding that trial court's finding was perverse.
39. In Paras 22 and 23 of Rupesh Mangar case (supra), the Supreme Court observed as under:
"22. In Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 495, Hari Singh Gond vs. State of M.P. (2008) 16 SCC 109 and Bapu vs. State of Rajasthan, (2007) 8 SCC 66, this Court has held that an accused who seeks exoneration from liability of an act under Section 84 of IPC has to prove legal insanity and not medical insanity. Since the term insanity or unsoundness of mind has not been defined in the Penal Code, it carries different meaning in different contexts and describes varying degrees of mental disorder. A distinction is to be made between legal insanity and medical insanity. The court is concerned with legal insanity and not with medical insanity.
23. In a recent judgment of this Court in Prakash Nayi Alias Sen vs. State of Goa (supra) after reiterating the above principles it is held that the procedure prescribed in Chapter XXV of the Code of Criminal Procedure, 1973 clearly indicates that there cannot be an acquittal on the ground of unsoundness of mind unless the act is actually done. The whole idea is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the court is to find the remedial measures and do complete justice. This Court held in para 17 thus:
"17. Having noted the scope and ambit of Chapter XXV CrPC, including the provisions incorporated by way of amendments in the year 2009, one has to take into account the fact that the court has a larger role to play while considering the case under Section 84 IPC. If a friendly approach is required to be followed during the trial, when (2011) 11 SCC 495 7 (2008) 16 SCC 109 8 27 (2007) 8 SCC 66 9 (2023) 5 SCC 673 adequate powers have been conferred upon the court to even discharge an accused on the ground of a n unsound mind, the same reasoning will have to be applied with much force when it comes to Section 84 IPC."
40. While allowing the appeal of the accused-appellant, and setting aside the judgment of the High Court where the appellant had been convicted for the offence punishable under Section 302 IPC, the Supreme Court held that the judgment of acquittal can be reversed by the appellate court only on the basis of perversity and not by taking a different view on re-appreciation of evidence. Since the medical record showed that the accused appeared to be clinically under the influence of some psychotropic substance and was taking a tablet which was a psychotropic substance, the judgment of the High Court was set aside and the judgment of Sessions Court was upheld giving benefit of doubt under Section 84 of IPC to the accused, and acquitted him.
41. Sumitra Bai Vs State of Chhattisgarh, 2023 SCC OnLine SC 418, is a case where the accused Sumitra Bai had been convicted by the Sessions Court as well as by the High Court of Chhattisgarh. However, the Supreme Court referred to the deposition of P.W.1 to P.W.4, which revealed that the accused Sumitra Bai was mentally ill and was brought to the house of P.W.1 Mahipal for treatment. The weapon used in the crime was a spade, which was recovered from P.W.1 Mahipal, and he had further stated that this weapon was recovered from his house. The plea taken by the 28 respondent before the Supreme Court was that it is necessary for an accused to establish what was the nature of mental ailment which the accused was suffering, which disabled the accused from knowing as to what he or she was doing. The Supreme Court referred to the evidence given by P.W.1 Mahipal, who had stated that accused had been sent to his house for treatment of mental ailment, and when the food was being cooked, the accused had picked up a spade (fawda) and assaulted the deceased Mangal Sai on his head. P.W.1 Mahipal had admitted in his cross-examination that the accused Sumitra Bai was mentally insane. He further stated that lot of people came to him to be treated for mental illness. He had not witnessed the incident. As per the evidence given by P.W.3, son of the P.W.1 Mahipal, when he came inside his home, he had seen that the accused had assaulted and killed Mangal sai, and when P.W.3 screamed, his parents came at the place of incident. He further stated that the accused and her father Mangal Sai were staying there for approximately one and a half months. He further admitted that mentally ill people came to his house for treatment. He further admitted that the spade used in the incident belongs to them.
P.W.4 Ajay is the son of the deceased and the brother of the accused. P.W.4 also admitted that Sumitra Bai was mentally ill and was brought by Mangal Sai for treatment in the house of P.W.1 Mahipal. The Supreme Court after 29 examining the above said evidence held that the prosecution had failed to prove the real genesis of the incident, and since father of the accused had brought her in the house of P.W.1 Mahipal for treatment of mental ailment, and she had been in custody for more than 12 years, the conviction recorded was converted from Section 302 IPC to Part I of Section 304 IPC, and the accused was sentenced for the period already undergone.
42. This Court has examined the record, and with respect to the mental illness suffered by the accused- Harmeet Singh, the relevant evidence is that of C.W.1 Dr. Surendra Kumar Dhalwal, C.W.2 Dr. J.S. Bisht, and C.W.3 Dr. Mohd. Shah Hassan.
43. Another important aspect in the present case is that at the time of framing of charges, the mother of the accused had made an application on 07.01.2017 for getting the appellant- accused examined for his mental illness. No steps were taken by the investigating agency to get the appellant- accused examined on account of his mental illness. Applications have been moved during investigation and trial for mental examination. On 11.10.2018, under Section 313 of Cr.P.C., after prosecution evidence was over, when the accused- Harmeet Singh was questioned by the Court, the accused- Harmeet Singh remained silent. In such a situation, the Court conducted the mental examination of the accused 30 in the hospital to ascertain whether the accused was deliberately not answering the questions being asked, or whether he was unable to speak due to mental immaturity of insanity. Thereafter, the Court got two reports during trial, i.e. 17.10.2018 (Exhibit-71Ka/3) and 26.08.2021 (Exhibit- 96Kha/1).
44. In compliance of the order dated 28.08.2023, passed by this Court in CRLA No.440 of 2021, AIIMS, Rishikesh has submitted its report on 27.09.2023, and the observation made in the report dated 27.09.2023, reads as under:-
Report:
Mr. Harmeet Singh (UHID 202301337) 28 years was evaluated as impatient from 15.09 2023 to date. During the ward stay he was found to be moderately groomed, performed activities of daily living without any assistance. He was able to comprehend and respond appropriately during interactions with the clinical team nursing staff and family members. He was consistently found to be either standing or in lying down in the bed (either on the side or over the chest and stomach) and had a slurred speech. Patient refused to sit in any comfortable posture despite assurances. No disturbances in sleep and appetite were noted during the entire period of admission, patient did not receive any psychotropic medication. The ward behaviour observation and serial mental state examination revealed that he was oriented to time, place, person had spontaneous speech but had limited social interaction. In evaluation of thought, patient was found to have possible delusion of ill health (a belief stating that his body is devoid of water as the entire calcium has been drained and hence, he suffers from weakness) and delusion of persecution (against family members who have apparently caused ill health).
The patient's previous records of inpatient admission medical and psychological reports were reviewed and details of history were sought from informants. Treatment records retrieved from Dehradun District Jail revealed that he was treated by jail psychiatrist with Tablet Risperidone 3 mg, Tablet Valproate 600 mg and Tablet Lorazepam 1 mg (Timeduration - not available).
Based on the aforementioned details and ward observation a possibility of psychosis, a psychiatric disorder, is likely, and he is advised long term follow up with jail 31 psychiatrist or locally available psychiatrist with ongoing medication treatment.
45. Apart from the above reports, there is evidence given by doctors with regard to his mental illness, which reads as under:-
"C.W. 1 Surendra Kumar Dhalwal, and C.W, 2 Dr. J. S. Bisht and C.W. 3 Dr. Mohammad Shah Hasan was examined as a court witness.
C.W. 1 Surendra Kumar Dhalwal's evidence is that he is a member of N.H.V.H. Working on the post of Assistant Professor / Doctor of psychology in 116 Rajpur Road for the last 15 years. He has M.Sc. Applied Psychology M.Phil. He has degrees in medical psychology and a Ph.D. in psychology. He has conducted more than 200 psychology tests. Paper numbers 71 A/3 and 71 A/6 report included on the file have been prepared by him and bear his signature. The present court had brought accused Harmeet Singh to the police for examination on 17.10.2018 and 18.10.2018. MSE, which is called Mental Status Examination. He did the following three tests Examination.
1. Mental Status Examination
2. MMPI-2-RF,
3. Rosa Ink Blot Test.
There is also evidence of Surendra Kumar Dhalwal that as per the above tests he found that Harmeet Singh has interpersonal passivity. He is weak in testing reality. Due to which he has less ability to understand the result. Due to this weakness, his ability to sense the outcome is weak. The patient is not completely mentally insane, but his ability to understand the action and retain information about its consequences is reduced. The patient had told him his name and his father's name. He has written the address on the basis of documents. The patient could not even tell anything about his educational qualifications. During the special test, the patient's information was found to be almost correct. The information given by the patient regarding place and time is not correct. On asking the patient whether he had any disease or problem, the patient denied. To conclude the report, he could not get other information related to the patient like how was the patient's childhood, what was the condition of his family, what was his conduct and behavior during his childhood. Due to which he could not reach any definite conclusion.
In cross-examination C.W. 1 The evidence of Surendra Kumar 157 Dhalwal is that he has mentioned in the report that "He shows about as much interest in other people as would be expected. This interest in being around people a and paying attention to what they say and do is a personality asset that ordinarily contributes to good adjustment." It cannot be denied that to avoid the consequences of the case, accused Harmeet is avoiding answering thequestions. The evidence of Surendra Kumar Dhalwal proves the fact that after examining accused Harmeet Singh on 17.10.2018 and 18.10.2018, this expert witness did not reach any definite conclusion, but this witness's conclusion was that accused Harmeet Singh is not completely mentally insane. In cross- examination, this witness has accepted the prosecution's 32 suggestion that it cannot be ruled out that accused Harmeet is avoiding answering the questions to avoid the consequences of the trial.
C.W. 2 J. S. Bisht's evidence is that he was working as a senior psychiatrist in Government Doon Medical College Hospital, Dehradun since 2012. Before this, he was working with Doon Medical College at Government Mental Hospital, Selaqui since 2008. His educational qualification is MBBS. M.D. (mental illness). That O.P.D. I see about 80 to 100 patients. Paper No. 71A/2 reports on the file in his writings and signatures. On October 26, 2018, he had conducted the medical examination of accused Harmeet Singh in the present court. During examination he found that Harmeet Singh was clean and his eye contact was normal. He was speaking in a low voice and slowly. He did not behave abnormally. There was no abnormality in his speaking. He was familiar with his surroundings. His intellectual ability was normal. There was nothing unusual in his mood. There was no abnormality in his thought and perception. When asked about his illness, he only told that there was pain in his hands and legs. He perused his prison hospital report paper No. 71A/7. In which there was no abnormality on any side. He examined the patient's NIVH. Perused the report, in which Poor judgment and impairment in reality testing is mentioned. In his opinion, Harmeet Singh is not currently a mental patient. The general life of the accused/patient is of normal personality style. In the past he had examined and treated patients for mental health. After this, he was advised to refer to higher institute AlIMS, New Delhi for second opinion. C.W.1 J. S. Bisht's evidence in cross-examination is that if someone has mental illness then it is not necessary for him to be violent. In his opinion he may be mentally ill. During his examination of accused no abnormality was found in him. In this report, he mentioned that he told the names of his parents and also confirmed that he had come from jail. It cannot denied that to avoid the consequences of the case, accused Harmeet is avoiding answering the questions.
Thus, C.W.2 J. S. Bisht's evidence does not prove the fact that accused Harmeet Singh was mentally ill during the medical examination on 25.10.2018. This fact proves that while examining accused Harmeet Singh on 26.10.2018, he was behaving normally. His intellectual ability was normal. He was not found to be mentally ill.
The evidence of C.W. 3. Dr. Mohammad Shah Hasan is that he was working as Medical Officer in District Jail, Dehradun in 2014. Paper number 71A/7 included on the file was written by Pharmacist Negi on his request. The signature and seal is his. According to this report, the accused is present in the court, Harmeet Singh, is completely normal and is leading his daily routine properly. This report has been prepared of the accused/patient Harmeet Singh is prepared on the basis of his daily routine after being admitted to the prison hospital. Routine paper no. 71A/4 of accused Harmeet Singh has been prepared under his supervision.
There is evidence in the cross-examination of C.W. 3. Dr. Mohammad Shah Hasan that since 28.10.2014, when the accused has come to jail, he has been taking medicine for mental illness. This expert will tell which mental illness medicines the accused is taking. According to his report, there is no abnormality in the behavior of the accused. It cannot be denied that to avoid the consequences of the trial, accused Harmeet is avoiding answering the questions. The evidence of C.W. 3 Dr. Mohammad Shah Hasan proves the fact that this witness has been 33 examining accused Harmeet Singh since 28.10.2014 (when the accused entered judicial custody in District Jail, Dehradun) and also his daily routine. This witness has not found the accused Harmeet Singh to be mentally ill at any stage. According to this witness, accused Harmeet Singh is a completely normal person and is leading his daily routine normally.
The evidence of Dr. Mohammad Shah Hasan has proved the fact that accused Harmeet Singh is suffering from some mental illness. Here it is being mentioned again that no argument has been taken regarding considering the crime committed by the accused under the general exception under Section 84. Indian Penal Code, 1860. An investigation was also conducted at the All-India Institute of Medical Sciences, Rishikesh regarding the accused being a mental patient. Investigation report 95A/2 and 96B are present on the file. The details in these forms are as follows. Mr Harmeet Singh, age 31 years was kept hospitalized from, 27.01.2021 to 12.02.2021. During ward stay he had normal self-care and daily routine without any assistance or prompting. He carried out basic activities of daily living independently. He was able to comprehend and respond appropriately during interactions with the nursing staff and clinical team. He was continuously on medication, Olanzapine 12.5 mg/day, as per past treatment details obtained from the Medical officer at Dehradun jail. His ward observation and serial mental status examinations revealed that he was oriented to time, place and person. His judgment ability was found to be intact during the course of hospitalization. During his stay and on serial mental status exam patient's account reveals that he is aware of the charges under which he was arrested, was able to name his legal counsel, understands the nature of the court proceedings and the consequences of his testimony. Routine investigations were within normal limit. Impression: While taking Tab. Olanzapine 12.5mg/day, Mr. Harmeet Singh appeared to take care of activities of daily living independently, and was oriented to the surrounding/environment. No sign of impaired judgment could be elicited.
Accordingly, investigation report 95A/2 and 96B of All India Institute of Medical Sciences, Rishikesh also proves the fact that accused Harmeet Singh is a person of normal intelligence. He is aware of the facts around him and is fully aware of the court proceedings."
46. Learned counsel for the appellant has referred to the Trial Court order dated 23.04.2015, whereby at the stage of framing of charges an application was moved by the accused to get him medically examined. However, along with the application, there was no proof that he was already taking medicine for mental treatment. This application was subsequently disposed, and as per the report given by 34 Superintendent, District Jail Dehradun - at Page 13 Ka/2 dated 28.04.2015, Harmeet Singh was taking anti-psychiatric medicines from Jail Hospital as per advice of the Psychiatrist, State Mental Health Institute, Selaqui. At present his condition was stable and satisfactory with regular follow-up of Psychiatrist. So this is the report dated 28.04.2015, which was taken into account by the Trial Court, and this report was made basis to return a finding that his condition was stable and satisfactory. However, a perusal of this report shows that he was already taking anti-psychiatric medicines from Jail Hospital. The said report is being reproduced as under:
"The Superintendent District Jail Dehradun.
Medical report of UT Harmeet Singh s/o Late Jai Singh u/s- 302/307/316 IPC PS Cantt Dehradun. Sir, In compliance of order of Hon'ble court of District Judge Dehradun dated 23/04/15 regarding UT Harmeet Singh this is to report that -
UT Harmeet singh is taking anti-psychiatric medicines from Jail Hospital as per advise of Psychiatrist State Mental Health Institute Selaqui. At present his condition is stable and satisfactory with regular follow-up of Psychiatrist.
Your Sincerely MEDICAL OFFICER DISTRICT JAIL DEHRADUN"
47. A perusal of this report means that the application given on 23.04.2015 for check-up in the Mental Hospital was rightly made by the family of the accused in the jail itself after the incident took place on 24.10.2014. After the date of the incident 24.10.2014, in jail, he was already taking anti- 35 psychiatric medicine in the Jail Hospital as per the advice of the Psychiatrist, State Mental Health Institute, Selaqui. So, he was already on medication, when he was in custody. Therefore, the application given by the mother of the appellant- accused, and the evidence given by C.W.3 Dr. Mohd. Shah Hassan has to be taken into account that even at the stage of committing the crime he was taking psychiatric medicines. Because this report of the jail authorities is very clear, and subsequently, as per the record, one report was of 27.10.2018, and the second report is of 01.09.2021 - 95 Ka/2, and both these reports show that he was suffering from mental illness, and he was taking a tablet of Olanzapine 12.5mg.
48. Therefore, at the time of the incident, even in the jail, after he was arrested, the evidence has come that he was taking psychiatric medicines. This is the only finding that these two reports are part of the investigation, and application was also moved correctly for getting his mental check-up. He was getting his medicine, as prescribed by the State Mental Health Institute, Selaqui.
49. In the facts of the present case, there is no evidence given along with first application dated 28.04.2015, and the second application dated 07.01.2017, given by the mother of the appellant- accused, whereby it has been stated that the appellant- accused was on anti-psychiatric medicines. 36 There is no proof attached with these applications as to what medicines the accused was taking for mental illness. However, the medicine taken by the appellant-accused is anti- psychiatric, which was recommended by the Mental Health Institute, as per the report dated 28.04.2015, given in the District Jail, Dehradun (Exhibit- 13Kha/2).
50. Now the only question for consideration is that if he was given this medicine when he was in custody what would be the effect of personality trait of a person who was suffering from Schizophrenia before he was arrested after committing murder of four persons on 24.10.2014.
51. Learned counsel for the appellant on this point has referred to the report of Department of Clinical and Rehabilitation Psychology, National Institute for the Empowerment of Persons with Visual Disabilities, Dehradun, dated 19.10.2018. The relevant portion of the report dated 19.10.2018 reads as follows:-
"MSE, MMPI and Rorschach findings are suggestive of interpersonal passivity, poor reality testing. He demonstrates an impairment of his reality testing capacity, whereby he tends to misperceive events and to form mistaken impression of people and the significance of their actions. This adaptive liability is likely to result, at times, in instances of poor judgment in which he fails to anticipate the consequences of his actions and misconstrues what constitutes appropriate behaviour."
52. Learned counsel for the appellant has referred to the cross-examination of C.W.3 Mohd. Shah Hassan at Page No.228 of the record, where he has stated that the accused 37 came to jail on 28.10.2014, and he was suffering from mental illness, and he was taking medicines, but this witness was not aware for which mental illness, the accused was taking medicines. He further stated in his cross-examination that the behavior of the accused was normal, and it cannot be denied that to save himself from this trial, accused- Harmeet Singh is not giving correct answers to the questions. However, this fact is clear from the cross-examination of C.W.3 Dr. Mohd. Shah Hassan that on 28.10.2014 when the accused came in jail, he was already on medication, but he was not aware of which medicine and for which illness, the appellant- accused was taking medicines and it is after this when the report dated 27.10.2018 came, it is mentioned that the appellant- accused was suffering from mental illness and he was taking medicine of Olanzapine 12.5mg.
53. As per the cross-examination of C.W.3 Dr. Mohd. Shah Hassan, the accused was taking medicines for mental illness when he came in jail on 28.10.2014. Hence, on 24.10.2014 as well, the accused was taking medicines for mental illness, though, the detail of medicines is not part of the official record. Therefore, the judgment of the Hon'ble Supreme Court in the case of Hari Singh Gond vs. State of Madhya Pradesh, (2008) 16 SCC 109, referred to by learned State Counsel cannot be made applicable to the facts of the present case, as there is direct evidence given by 38 C.W.3 Dr. Mohd. Shah Hassan that on 28.10.2014, the accused was on mental illness medicines, though the details of medicine are not given.
54. The only ground to be seen is whether the illness which the appellant was suffering keeping in view that he was separated from his natural mother, staying in step-mother's house, was his personality so dented that he suffered mental illness, and he committed this crime without realizing the effect.
55. Since there is direct evidence now before the Court that when the accused came to jail on 28.10.2014, he was already on medication of mental illness, however, the illness, from which the accused was suffering, is not made out. Subsequently, in 2015, as per the report given to Superintendent, District Jail, Dehradun, by the Medical Officer, District Jail Dehradun, the accused was taking anti- psychiatric medicines from Jail Hospital, on the advice of Psychiatrist, State Mental Health Institute, Selaqui.
56. Hence, in the present case, there is no direct evidence that what mental illness, the accused was suffering on the date of the incident, and what medicines he was taking. Since the medicine was given Olanzapine 12.5mg. as per the report of the District Jail, Dehradun, presumption will have to be drawn that the accused- Harmeet Singh was 39 suffering from mental illness on the date of incident, i.e. 24.10.2014. In this regard, the judgment referred to by learned counsel for the State in the case of Hari Singh Gond vs. State of Madhya Pradesh, (2008) 16 SCC 109 will not be applicable to reject the argument of learned counsel for the appellant that the accused was suffering from mental illness on the date of incident.
57. The question to be examined now is whether the appellant- Harmeet Singh, who was suffering from mental illness, was conscious of the after-effects of committing murder of Jai Singh (father of the appellant), Ms. Kulwant Kaur (step-mother of the accused), Ms. Harjeet Kaur (step- sister of the appellant), and Ms. Sukhmani (niece of the appellant).
58. Since two applications were made by the appellant for getting his mental treatment, one is of 28.04.2015, and another by his mother on 07.01.2017, the family members were conscious enough to take steps for his mental treatment when he was in custody. However, with respect to the medicines, which he was taking before his arrested, there is no evidence except the evidence of C.W.3 Mohd. Shah Hassan. Hence, the mens rea of the accused at the time of committing the offence can only be examined keeping in view the facts which are part of the record.
40
59. The first fact is that the accused was the son of deceased Jai Singh, but he used to stay with his biological mother and brother. His father had re-married, and had adopted a daughter. Before the date of incident, i.e. 24.10.2014, he had come back from his mother's house to live with his father, and stepmother about 7-8 years back. He was 21 years of age at the time of incident, and 7-8 years back, when he was brought back to his father and stepmother's home, he was around 16 years of age. He was a teenager. From 16 years till 21 years, he suffered from mental illness. He was a deprived soul and living in the house of father with stepmother by suppressing his emotions, and that is why he was mentally ill. At a tender age of 16 years, he was brought from his mother's home and at a young age of 21 years, he was suffering from mental illness, would only go to show that he was not a happy child in his father's home along with his stepmother and stepsister.
60. In the above said background, it has to be seen that if he was suffering from mental illness and committed this crime, in the present case, the evidence is there that after he committed the crime of murder of his father, stepmother, stepsister and niece, he did not run away from the spot. When his uncle P.W.1 Ajit Singh (chacha) came to his house with P.W.3 Raji Devi (the household worker), he 41 remained in the house and did not run away. The presumption is that he was mentally disturbed.
61. With reference to the illness of schizophrenia, reference can be made to the relevant text available in Paragraph No.19 of the Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edition, and in Elizabeth A. Martin (2007) "Oxford Concise Medical Dictionary (7th Edition)". With respect to schizophrenia, it is observed that this disease develops at the time of puberty or adolescence, and in many cases, it is developed outside that period. It is also stated that the disease ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people. Relevant portion of Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edition, a textbook on Medical Jurisprudence and Toxicology, and in Elizabeth A. Martin (2007) "Oxford Concise Medical Dictionary (7th Edition), reads as under:-
SCHIZOPHRENIA
19. Now, we shall come to the mental illness caused by Schizophrenia. We do not wish to go into the said issue as it being one within the exclusive knowledge of the experts, except to quote the relevant text available:
19.1. Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 922:
"(ii) Schizophrenia. -Kraepelin (Emil Kraepelin, German psychiatrist.), in 1896, named this disease as 'dementia praecox'. In 1911, Eugen Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.) introduced the term 'schizophrenia' which literally means disintegration of mind. The term dementia praecox was changed because it implied that the disease always ended in dementia, which it did not.42
The term praecox meant that the disease developed at the time of puberty or adolescence, but in many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people."
19.2. Elizabeth A. Martin (2007), "Oxford Concise Medical Dictionary (7th edition)", pg. 642:
"Schizophrenia n. a severe *mental illness characterised by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Positive symptoms, such as *delusions and *hallucinations (especially of voices), are common, and any *Schneiderian first-rank symptoms are particularly indicative of the illness. Negative symptoms include social withdrawal, impairment of ego boundaries, and loss of energy and initiative. Schizophrenia is diagnosed only if symptoms persist for at least one month. The illness can spontaneously remit, run a course with infrequent or frequent relapses, or become chronic. The prognosis has improved with *anti-psychotic drugs and with vigorous psychological and social management and rehabilitation. The many causes include genetic factors, environmental stress, and possibly illicit drug use."
19.3. American Psychiatric Association 2013, Diagnostic and Statistical Manual of Mental Disorders : DSM- 5, 5th Edn, American Psychiatric Association, Washington DC. pg. 87:
"Schizophrenia spectrum and other psychotic disorders include schizophrenia, other psychotic disorders, and schizotypal (personality) disorder. They are defined by abnormalities in one or more of the following five domains: delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms."
62. In the facts of the present case, the fact that the appellant- accused was suffering from mental illness, and was taking medicine, came to light when he came in jail on 28.10.2014. As per C.W.3 Dr. Mohd. Shah Hassan, the appellant- accused was taking medicine for mental illness. However, what mental illness he was suffering, and what medicine the appellant- accused was taking, is not the evidence on record. The fact that the appellant- accused was 43 suffering from Schizophrenia, and was taking medicine Olanzapine 12.5 mg every day, was part of the report of the Department of Clinical and Rehabilitation Psychology, National Institute for the Empowerment of Persons with Visual Disabilities, Dehradun, dated 19.10.2018. The fact that the appellant- accused was suffering from Schizophrenia, was as per the report dated 27.10.2018 and report dated 01.09.2021- 95Ka/2. As per the above two reports, the appellant- accused was taking medicine Olanzapine 12.5 mg, and this medicine is given to a person, who is suffering from Schizophrenia. There is no direct evidence of the appellant- accused suffering from Schizophrenia, and was taking medicine for that illness at the time of committing murder of four persons on 24.10.2014.
63. Learned counsel for the appellant has argued that if a person is suffering from Schizophrenia, but was not taking any medicine for Schizophrenia at the time of committing the crime, presumption should be drawn that he was suffering from Schizophrenia, as per the report of the Office of Research & Public Affairs, relating to Serious Mental Illness and Homicide. However, a presumption can be drawn that the appellant- accused was suffering from Schizophrenia keeping in view the above two reports dated 27.10.2018 and 01.09.2021- 95Ka/2. Since there is no direct evidence that what medicine the appellant- accused was taking when he came to jail on 28.10.2014, and from what mental illness, he was suffering, 44 therefore, merely on the basis of presumption, he cannot be extended the benefit of acquittal under Section 84 of IPC. At the same time, keeping in view that he was taking medicine for mental illness when he was in custody on 28.10.2014, and after 19.10.2018 till date, he was taking the medicine for Schizophrenia, i.e. Olanzapine 12.5 mg, as per the observation made in Paragraph No.59 of the judgment, his conviction under Section 302 IPC is being converted into Part I of Section 304 IPC, and he is sentenced for the period already undergone. The appellant- accused is in custody since 2014, the period of sentence is reduced to the period already undergone.
64. In view of the foregoing discussion, Criminal Reference No.04 of 2021, in respect of convict- appellant Harmeet Singh made by the Trial Court so far as the confirmation of sentence of death to him is concerned, is answered in negative.
65. The Criminal Appeal filed by the appellant- accused Harmeet Singh against the conviction and sentence awarded by the Trial Court in Sessions Trial No.05 of 2015 is disposed of as per above discussion.
66. Let a copy of this judgment be sent to the Trial Court with reference to its letter dated 18.10.2021 in Sessions Trial No.05 of 2015. A copy of this judgment be also sent to the Superintendent of Jail concerned where the convict is presently 45 serving out his sentence, for ensuring compliance of this order. Trial Court Record be sent back.
67. Further keeping in view the report given by AIIMS, Rishikesh dated 27.09.2023, the condition of the appellant- accused Harmeet Singh is that he is suffering from psychosis, a psychiatric disorder, and he has been advised long term follow up with jail psychiatrist or locally available psychiatrist with ongoing medication treatment. It is further observed in this report that the patient was having possible delusion of ill health and he could not sit in any comfortable posture despite assurances. He had a slurred speech, and he was consistently found to be either standing or in lying down in the bed. Keeping in view the medical condition of the appellant- accused- Harmeet Singh, the State Legal Services Authority will help getting the appellant- accused treatment even after he is released from the jail from locally available psychiatrist so that his medication continues. This direction is being given keeping in view that now he has only a mother and brother to support him, as the father of the appellant- accused has already died.
68. Pending application, if any, also stands disposed of.
(RITU BAHRI, C.J.) (ALOK KUMAR VERMA, J.) Dated: 09th July, 2024 NISHANT