Himachal Pradesh High Court
Surender Singh vs State Of Himachal Pradesh on 26 May, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 59 of 2011
Judgment Reserved on : 29.4.2015
Date of Decision : May 26 , 2015
Surender Singh ...Appellant
Versus
State of Himachal Pradesh
Coram:
r to ...Respondent
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? Yes.
1
For the appellant : Mr. Vishal Bindra, Advocate for the appellant.
For the respondent : Mr. Ashok Chaudhary, Addl. Advocate General
with Mr. V. S. Chauhan, Addl. A.G. for the
respondent-State.
Sanjay Karol, J.
Convict Surender Singh (appellant herein), has assailed the judgment dated 31.12.2010/7.1.2011, passed by Sessions Judge, Sirmaur, District at Nahan, Himachal Pradesh, in Sessions Trial No. 02-ST/7 of 2010, titled as Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 2State of Himachal Pradesh vs. Surender Singh, whereby he stands convicted for having committed offences punishable .
under the provisions of Sections 302, 323, 324, 201, 452 and 506 (II) of the Indian Penal Code and sentenced as under:-
Sections Sentence
302 IPC Rigorous imprisonment for life and pay
fine of `20,000/- and in default thereof to further undergo imprisonment for a period of one year.
323 IPC Rigorous imprisonment for a period of one year and to pay fine of `1,000/-
and in default thereof to further undergo imprisonment for a period of three months.
324 IPC Rigorous imprisonment for a period of two years and to pay fine of `10,000/-
and in default thereof to further undergo imprisonment for a period of six months.
201 IPC Rigorous imprisonment for a period of five years and to pay fine of `10,000/-
and in default thereof to further undergo imprisonment for a period of six months.
452 IPC Rigorous imprisonment for a period of five years and to pay fine of `10,000/-
and in default thereof to further undergo imprisonment for a period of six months.
506 (II) Rigorous imprisonment for a period of IPC three years and to pay fine of `5,000/-
and in default thereof to further undergo imprisonment for a period of three months.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 3he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973.
.
2. It is the case of prosecution that accused Surender Singh resident of village Dadahu was working as a Chowkidar at Panchayat Vishram Griha (Kisan Rest House), Dadahu. On 13th October, 2009, he gave beatings to his sister Kunta Devi who took refuge in the house of her neighbour Sh. Jagdish Chand (PW-1). In the middle of night, armed with a scissor, darat and danda, accused came and knocked the door of Jagdish Chand asking Kunta Devi to come out. When she came out accused again gave her beatings. Hearing her cries, neighbour Shashi Bala (PW-5) also came who also was beaten up by the accused.
However, she was saved by her son Deepak Kumar (PW-8).
Accused then went to the house of Rangi Lal and started giving him beatings. He also gave beatings to Kartar Singh who also was present there. However when both of them ran towards the road, accused drenched them with kerosene oil and set them on fire. Resultantly both Rangi Lal and Kartar Singh died on the spot. Jagdish Chand reported the matter to the police and F.I.R. No. 54/2009 (Ext. PW-
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 41/A), dated 14.10.2009, was registered against the accused at Police Station Renukaji, Distt. Sirmaur, under the .
provisions of Section 302 of the Indian Penal Code. SI-
Narayan Singh (PW-11), posted as Station House Officer, Renukaji, proceeded to the spot and conducted the necessary investigation. After taking photographs on the spot, he prepared inquest reports (Ext.PW-1/B and PW-1/D) and sent the dead bodies for post mortem, which was conducted by Dr. Vinay Kumar (PW-10) and reports (Ext.
PW-10/C and PW-10/D) obtained. From the spot, police took into possession plastic canny (Ext.P-3), match-box (Ext. P-
4), scissor (Ext.P-5), knife (Ext. P-6) and other incriminating articles. Accused was arrested and was also medically examined by Dr. Vinay Kumar on 15.10.2009. Upon receipt of the report of the State Forensic Science Laboratory, Junga, the Doctor opined the deceased to have died due to shock caused as a result of 100% burn injuries and that death took place within 15 minutes of receiving such burn injuries. Investigation revealed complicity of the accused in the alleged crime. Hence, challan was presented in the Court for trial.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 53. Accused was charged for having committed offences punishable under the provisions of Sections 452, .
324, 323, 302, 506(II) and 201 of the Indian Penal Code to which he did not plead guilty and claimed trial.
4. In order to prove its case, in all, prosecution examined as many as eleven witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded.
5. Quite apparently accused took plea of insanity, not knowing as to what and how the incident happened. In defence he examined three witnesses.
6. Appreciating the material on record, including the testimonies of the witnesses, trial Court convicted the accused of all the charged offences and sentenced as aforesaid. Hence, the present appeal.
7. We have extensively heard learned counsel appearing on both the sides and perused the record.
8. Challenge to the judgment, by Mr. Vishal Bindra, learned counsel for the appellant-accused, is on a limited ground. The actual occurrence of the incident is not in dispute. However it is argued that the accused, in a state of mental disorder and unsoundness of mind, without realizing ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 6 the consequences of his acts, committed the charged offences. Also accused had no malice or bias against any .
one of the victims. Thus, in law, their being no knowledge and intent of commission of crime, appeal needs to be allowed. More specifically, it is argued that accused was a chronic patient of epilepsy and last such attack took place only one day prior to the incident i.e. on 12th October, 2009, for which he had undertaken treatment from a competent medical practitioner. It is further argued that in the night intervening 13th/14th October, 2009, the time of occurrence of the incident and commission of crime, accused who was undertaking medical treatment for his medical illness was not in a proper sate of mind. His conduct exhibits such fact.
Hence, he needs to be acquitted.
9. On the other hand, Mr. Ashok Chaudhary, learned Addl. Advocate General ably assisted by Mr. V. S. Chauhan, learned Addl. A.G. has supported the impugned judgment for the reasons set out therein.
10. From the conjoint reading of the testimonies of the prosecution witnesses namely Jagdish Chand (PW-1), Shashi Bala (PW-5) and Deepak Kumar (PW-8) it is evidently ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 7 clear that prosecution has been able to establish, beyond reasonable doubt, the fact that accused committed criminal .
trespass; voluntarily caused injuries with sharp edged weapon to Shashi Bala; criminally assaulted Rangi Lal and Kartar Singh; threatened to kill Shashi Bala and Jagdish Chand and their family members and also caused the evidence to disappear with an intention of screening himself. Also it stands established that accused first gave beatings to deceased Rangi Lal and, thereafter, by pouring kerosene oil, set them on fire. We notice that the occurrence of the incident is also not disputed by Kunta Devi (DW-3) who stepped into the witness box on the asking of her brother, the present accused. They are spot witnesses and saw the occurrence of the incident. There is no infirmity in their testimonies, which are fully inspiring in confidence with regard to the incident(s) in question. Each one of them have categorically deposed that in the night intervening 13th and 14th of October, 2009 at about 12.30 a.m., accused came to the house of Jagdish Chand and shouted for his sister Kunta Devi. When she came out he started giving her beatings. Shashi Bala who also reached ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 8 the spot was also beaten by the accused though she was saved by her son Deepak Kumar. Testimony of Jagdish .
Chand, to the effect that accused set the deceased on fire, is fully inspiring in confidence.
11. From the testimony of Dr. Vinay Kumar (PW-10), who conducted the post mortem on the deceased, it is evidently clear that both the deceased died as a result of shock, so received on account of 100% burn injuries. Post mortem report of deceased Rangi Lal is Ext. PW-10/C and that of deceased Kartar Singh is Ext. PW-10/D. They stand proven on record.
12. The incriminating articles recovered from the spot, with which accused set the deceased on fire stands proved on record by the police officials and witnesses to the recovery memos. We need not elaborately deal with this aspect of the matter, in view of limited submission so made before us.
13. However only to satisfy our conscience, we went through the testimonies of the prosecution witnesses and find, as briefly discussed herein above, the accused to have committed the acts for which he stands charged for.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 914. The question which needs to be considered is as to whether such crime was committed by the accused out of .
malice/bias and in a state of unsound mind. In effect, plea of insanity, as one of the defences, so provided under the provisions of Section 84 IPC is taken by the accused.
15. It is a settled position of law that absence of motive itself cannot be a ground to discredit the prosecution story and its witnesses.
r Accused cannot be acquitted solely on this ground. Coming to the defence of insanity, so taken by the accused, before we deal with the evidence on record, we shall first deal with the law on the issue.
16. Section 84 of the Indian Penal Code provides that nothing is an offence which is done by a person who, at the time of its commission, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law. However, the burden to prove such defence, in view of the provisions of Sections 101 and 105 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act), would be on the accused. The plea of insanity has to be established by ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 10 leading credible evidence. It is also a settled principle of law that law presumes every person to be sane, unless .
contrary is proved.
17. The apex Court in Sheralli Wali Mohammed vs. The State of Maharashtra, (1973) 4 SCC 79 has held that it would be most dangerous to admit the defence of insanity upon the arguments derived merely from the character of the crime. The mere fact that no motive was proved, as to why the accused committed the crime of murder nor the fact that he made any attempt to run away from the spot, would not be indicative of his plea of insanity or lack of necessary mens rea for the commission of the crime.
18. Apex Court in State of Madhya Pradesh v.
Shmadulla, AIR 1961 SC 998, has clearly held that burden to establish mental condition of the accused, at the crucial point of time, lies upon the accused, who claims such benefit of unsoundness of mind.
19. While taking note of provisions of Section 101 as also Section 105 of the Evidence Act, the apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 held that when a plea of legal insanity is set ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 11 up, Court has to consider whether at the time of commission of the offence, the accused, by reason of .
unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time of commission of offence. Whether accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed by the crime. [Also see:
Elavarasan v. State, represented by Inspector of Police, (2011) 7 SCC 110; Sidhapal Kamala Yadav v. State of Maharashtra, (2009) 1 SCC 124; Hari Singh Gond v. State of M.P., (2008) 16 SCC 109; Bablu alias Mubarik Hussain v.
State of Rajasthan, (2006) 13 SCC 116; Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748; T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219; State of H.P. v. Gian Chand, (2001) 6 SCC 71; (1974) 3 SCC 299, Sheralli Wali Mohammed v. The Statte of Maharashtra, (1973) 4 SCC 79; Oyami Ayatu v. The State of Madhya ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 12 Pradesh; and Bhikari v. The state of Uttar Pradesh, AIR 1966 SC 1.] .
20. In Amrit Bhushan Gupta v. Union of India and others, (1977) 1 SCC 180, the apex Court had the occasion to deal with a case where, based on medical opinion of the convict suffering from schizophrenia, while appreciating the law as laid down in England, rejected the plea of the accused not to undergo sentence, so imposed by the criminal Court.
21. Further, in Paras Ram and others v. State of Punjab, (1981) 2 SCC 508, the apex Court held that:
"2. Just one more observation relevant to the punishment. The poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifice, in defiance of the scientific ethos of our cultural heritage and the scientific impact of our technological century, shows up in crimes of primitive horror such as the one we are dealing with now, where a blood-curdling butchery of one's own beloved son was perpetrated, aided by other 'pious' criminals, to propitiate some bloodthirsty deity. Secular India, speaking through the court, must administer shock therapy to such anti-social 'piety', when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social justice has many facets and judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants. In discharge of this high duty, we refuse ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 13 special leave in these applications against the correct convictions and sentences of the courts below."
.
22. In Vijayee Singh and others v. State of H.P., (1990) 3 SCC 190, the apex Court, observed that:
"23. At his stage it becomes necessary to consider the meaning of the words "the court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act. Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved".
24. The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 14 also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the .
absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.
23. The apex Court in Bapu alias Gujraj Singh v.
State of Rajasthan, (2007) 8 SCC 66, held as under:
"9. 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 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 Hale'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.
10. 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 ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 15 insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).
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11. 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, p. 166 has observed that if a persons cut off the head of a sleeping man because it would be great fun to see him looking for it when he 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 Sheralli Walli Mohammed v. State of Maharashtra, (1973) 4 SCC 79 held that (SCC p.79):
"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 the necessary mens rea for the offence."::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 16
12. 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 M'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(HM). 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 a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.
13. 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."
(Emphasis supplied) ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 17
24. The apex Court in Sudhakaran v. State of Kerala, .
(2010) 10 SCC 582, further observed as under:
"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.
31. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a decision of the House of Lords rendered in the case of R. Vs. Daniel Mc Naughten2. In that case, the House of Lords formulated the famous Mc Naughten Rules on the basis of the five questions, which had been referred to them with regard to the defence of insanity. The reference came to be made in a case where Mc Naughten was charged with the murder by shooting of Edward Drummond, who was the Pvt. Secretary of the then Prime Minister of England Sir Robert Peel.
The accused Mc Naughten produced medical evidence to prove that, he was not, at the time of committing the act, in a sound state of mind. He claimed that he was suffering from an 2 [1843 RR 59:
8ER 718(HL)] insane delusion that the Prime Minister was the only reason for all his problems. He had also claimed that as a result of the insane delusion, he mistook Drummond for the Prime Minister and committed his murder by shooting him.
32. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The aforesaid verdict became the subject of debate in the House of Lords. Therefore, it was determined to take the opinion of all the judges on the law governing such cases. Five questions were subsequently put to the Law Lords. The questions as well as the answers delivered by Lord Chief Justice Tindal were as under:-::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 18
"Q.1 What is the law respecting alleged crimes committed by persons afflicted with insane .
delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing a revenging some supposed grievance or injury, or of producing some public benefit?
Answer "Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.
Q.2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?
Q.3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?
Answers - to the second and third questions ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 19 That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be .
responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party 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 if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put as to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 20
Q.4. If a person under an insane delusion as to the existing facts commits and offence in consequence thereof, is he thereby excused?
.
Answer The answer must, of course, depend on the nature of the delusion, but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self- defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
Q.5. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?
Answer We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 21 is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be .
convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right."
A comparison of answers to question no. 2 and 3 and the provision contained in Section 84 of the IPC would clearly indicate that the Section is modeled on the aforesaid answers."
25. In Surender Mishra v. State of Jharkhand, (2011) 11 SCC 495, the apex Court held as under:
"11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the 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 affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.
(Emphasis supplied)
26. Plea of insanity or defence set up by the accused has to be examined in the light of aforesaid decisions and settled principles of law.::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 22
27. To prove the factum of insanity, our specific attention is invited to the testimonies of Jagdish Chand (PW-
.
1), Shashi Bala (PW-5), Deepak Kumar (PW-8), Dr. Vinay Kumar (PW-10) and SI-Narayan Singh (PW-11), prosecution witnesses and Dr. Suresh Kumar Bansal (DW-1), Dr. Peter Desouza (DW-2) and Kunta Devi (DW-3), defence witnesses.
28. We shall first deal with the testimony of the prosecution witnesses.
29. From the testimony of Jagdish Chand it is evident that accused had suffered some kind of "fit" on 12th October, 2009. Resultantly he was shown to Dr. Peter Desouza at Nahan and on his advise some test was got conducted on 13th October at Chandigarh. Witness also states that even on 2nd October, 2009, accused was taken for treatment to Dr. Peter Desouza who had issued prescription slip (Ext. DW-2/A). This witness further states that when police had tried to nab the accused he had started spitting at the police officials and laughing loudly saying that "I have killed two piegons see them".
30. Shashi Bala is silent with regard to the ill health or mental state of unsoundness of mind of the accused.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 2331. Deepak Kumar states that he rescued his .
mother Shashi Bala from the clutches of the accused who was beating her. At that time accused was "very violent and was assaulting every one whoever was seen by him". Even he was beaten up. Also even after his arrest in the police station accused continued to remain violent and abused everyone. It was only after a great deal of effort that the accused was brought under control.
32. The Investigating Officer SI-Narayan Singh states that when the accused was arrested, he was struggling and saying that "why I am being arrested, when I have done nothing". Also accused was abusing. An application for hand cuffing was filed for the reason that the accused was using force against the police.
33. Dr. Vinay Kumar examined the accused on 15th October, 2009. The injuries on his body, as was so observed by the Doctor, stands explained through the unrebutted testimony of Deepak Kumar who states that at the time he saved his mother (Shashi Bala), he gave beatings to the accused. Much emphasis has been led on the testimony of the Doctor to highlight that at the time of ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 24 commission of offence, accused was not in his senses.
However, we do not find such fact to have been established.
.
In cross examination, Doctor states that:
"There is no prescribed medical test to judge insanity. To judge the insanity, the personal behaviourial history is considered. For medical legal aspects, Medical jurisprudence by Dr. Modi and Text Book of Forensic Science by Dr. Ready are considered as guidelines in routine practice. It is correct that to commit murder without any motive, to attack near and dears, the absence of secrecy in committing crime, committing crime without preparation and without accomplice and not absconding from the scene after committing crime are the signs of insanity. The period of fit of insanity depends from person to person and from disease to disease and can be as short as few minutes or can last for hours or days. It is correct that episode of fit of insanity can occur after a day or it is also possible that the same occurs after a period of year. It is also correct that the normal interval between the two episodes of insanity is called lucide interval and during the lucide interval, the behaviour of the person is absolutely normal. It is also correct that a person who has suffered a fit of insanity, 14-10-2009 can be absolutely normal on 15-10-2009. There can be a delusion that a ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 25 person suffering from mental disease can see a human being as an animal or bird. The .
medicine written on Mark A is tab.
Phenobarbiton. This medicine is prescribed for mental disorder and more particular for epilepsy. The test of EEG can be normal even if a person is suffering from mental disease."
His opinion conclusively does not establish mental state of unsoundness of mind of the accused.
34. Significantly it has come on record through the unrebutted testimony of Shashi Bala that accused, aged 30 years, was initially working in a Halwai shop and for the last four - five years has been working as a Chowkidar, in the Rest House, Dadahu. Even she does not state that accused was suffering from any mental illness or had suffered a "fit"
on the day of occurrence of the incident. In fact, no such suggestion has been put to her.
35. Significantly Jagdish Chand does not state that in the night of 13th October, 2009, when Kunta Devi came to his house, she informed him that the accused was suffering from any kind of mental disorder or had suffered a "fit"
(epilepsy) as a result of which accused had given her beatings. All that he states is that since Kunta was ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 26 frightened, she sought refuge in his house for the reason that she was beaten by her brother and thus was scared.
.
36. Significantly this witness clarifies that Dr. Peter Desouza did not disclose the reason of "fit" so suffered by the accused, nor did he disclose his diagnosis. He is not aware as to whether any medication was prescribed by the Doctor or in fact taken by the accused. Crucially the witness does not disclose that on 13th October, 2009, the day of incident, he was informed by Kunta Devi of the accused having suffered any fit. She was beaten up by the accused and had sought refuge in the house of this witness, as she was scared. Hence this witness does not even prima facie establish, much less conclusively, the plea of insanity.
37. The question which arises for consideration is as to whether the following circumstances which have come on record, conclusively exhibit the conduct of the accused to be that of an insane person:
(i) Absence of motive,
(ii) Possessing multiple weapons at the time of attack,
(iii) Attack without provocation, ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 27
(iv) Cordial relationship with all the victims including the deceased, .
(v) Absence of secrecy,
(vi) Laughing and not fleeing away from the spot after commission of crime,
(vii) Calling deceased to be pigeons and
(viii) Exhibiting violent behaviour against the police who filed application for handcuffing the accused before the appropriate court.
38. Now we proceed to discuss the testimonies of the defence witnesses. Kunta Devi (DW-3) states that on 12th October, 2009 accused who suffered a "fit" became unconscious and froth was coming from his mouth. On 13th October, he was taken to Chandigarh for medical examination and they returned at about 6.00 - 7.00 p.m. Now significantly this witness does not state anything with regard to the treatment so administered by Dr. Peter Desouza. She further states that same day at about 10.00 p.m., accused suddenly slapped her and tried to slash her throat. However, she sought refuge in the house of her uncle Jagdish Chand where she slept. In the middle of night, accused came to the house of Jagdish Chand armed with weapons. She came out of the house and the accused ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 28 again stated beating her with kick blows. He then ran away and starting assaulting Shashi Bala. When police tried to .
catch the accused he was saying "why you are catching me when I have just killed pigeons". Witness further states that even in the year 2007, accused had exhibited similar conduct when a Pandit had told that he was under the influence of evil powers. The said Pandit treated him and thereafter he was normal. Now significantly witness admits her parents to be alive who have not been examined in Court. Her version that on 12th October, 2009 accused having suffered an epileptic attack does not inspire confidence at all. She was not alone at home. Her parents are alive. Yet they have not been examined. Except for prescription (Ext. DW-2/A) dated 2.10.2009, there is no medical evidence on record proving the illness of the accused. From her testimony it is evident that when accused returned from Nahan and Chandigarh, he was normal. He also had dinner that day. Crucially she admits that on the day of occurrence of the incident there was no attack of any kind even in the evening, though she clarifies by stating that the accused was behaving like a mad man.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 2939. Now Dr. Peter Desouza (DW-2) who issued prescription slip (Ext. DW-2/A) states that "It is correct that .
in case of an epileptic cizure grandmal epileptic cizure, patient falls unconscious. It is correct that when patient Surender was brought to me he was having normal behaviour and cooperative".
40. Dr. Suresh Bansal (DW-1) who conducted the EEG (Ext. DW-1/A) admits that the test revealed the brain cells to be functioning normally. Also the patient was cooperative and behaving in a normal manner.
41. In view of this evidence on record, by applying the ratio of law laid down by the Hon'ble Supreme Court of India and more specifically in Surender Mishra (supra), Bapu alias Gujraj Singh (supra), Dahyabhai Chhaganbhai Thakkar (supra) and Sheralli Wali Mohammed (supra), it cannot be said that the accused has been able to discharge his statutory burden so stipulated under the provisions of the Indian Evidence Act. It cannot be said that on account of his unsoundness of mind, accused was incapable of knowing the nature of offence he was committing.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 3042. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour, which can also .
be violent, cannot be said to be a symptom of unsoundness of mind. Crucially the accused was employed as a Chowkidar, where he had been working over a long period of time, without any behaviour of abnormality. Violent behaviour can be as a result of anger against anyone and everyone for undisclosed reasons.
r Parents were the best persons to have thrown light on the upbringing of the child.
There is no prior history of unsoundness of mind.
43. Quite apparently, accused has not been able to examine any witness, or produce any credible evidence, establishing the plea of insanity. Thus, the essential ingredients, as is so required, under the provisions of the Indian Penal Code and the Indian Evidence Act, not having been established on record, defence of the accused cannot be said to have been probablized, much less proved.
44. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for.
There is sufficient, convincing, cogent and reliable evidence ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 31 on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable .
testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt to the hilt.
The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused.
Circumstances when cumulatively considered fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.
45. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that accused committed the charged offences.
::: Downloaded on - 15/04/2017 18:15:14 :::HCHP 3246. For all the aforesaid reasons, there is no reason to interfere with the judgment passed by the trial Court.
.
The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Findings of conviction cannot be said to be erroneous or perverse.
Hence, the appeal is dismissed.
Appeal stands disposed of, so also pending application(s), if any.
Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(P. S. Rana), Judge.
May 26 , 2015 (PK) ::: Downloaded on - 15/04/2017 18:15:14 :::HCHP