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Meenakshi Madan Rai, J.

1. The Respondent/Accused was acquitted of the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter, the ―IPC‖), vide the assailed Judgment, dated 30-10-2018, in Sessions Trial Case No.01 of 2017, the Learned Trial Court having concluded that the Respondent was entitled to the benefit of Section 84 IPC.

2. Briefly narrated, the facts of the case are that; P.W.1 Reeta Rai, the daughter of the deceased, lodged Exhibit 1, the FIR, on 16-10-2016, informing the Rongli Police Station, East Sikkim, that the 81 year old deceased, her father who was living with her, had been attacked by the Respondent (her nephew and grandson of the deceased), who had arrived the previous day along with the deceased to stay with her, with a sharp aged weapon (patang) and murdered him. Exhibit 1 was duly registered under Section 302 of State of Sikkim vs. Rupesh Manger (Thapa) the IPC against the Respondent, aged 25 years. P.W.16 took up the investigation, on completion of which Charge-Sheet was submitted against the Respondent under Section 302 of the IPC. On 07-10- 2017, the Learned Trial Court framed Charge against the Appellant under Section 302 to which the Respondent entered a plea of ―not guilty‖ and claimed trial. The Prosecution examined seventeen witnesses in a bid to prove its case beyond a reasonable doubt. 3(i). Pausing here momentarily, it may relevantly be noticed that the records of the Learned Trial Court reveal that the Respondent was taken into judicial custody on 17-10-2016 from where he was produced periodically before the Learned Trial Court, as per Law. On 10-04-2017, approximately six months from the time that the Respondent had been incarcerated the Learned Senior Counsel made a submission that the Respondent had earlier been diagnosed with some psychiatric disorders and therefore, may not be of sound mind to make his defence. While considering the submissions, the Learned Trial Court observed that on general examination by the Court the Respondent appeared normal but in view of his medical history referred him to the Psychiatrist at the STNM (Government) Hospital. Having examined and treated the Respondent, the concerned Consultant Neuro-Psychiatrist, Dr. Netra Thapa appeared before the Court on 04-05-2017 and was examined as Court Witness (C.W.1). Based on the medical history of the Respondent and his preliminary examination he opined that the Respondent was suffering from major depressive disorder with psychotic features and he required at least two months' time to properly examine and evaluate the Respondent's mental condition. The Learned Trial Court on the same date ordered the State of Sikkim vs. Rupesh Manger (Thapa) Respondent's admission to the Psychiatric Unit of the STNM Hospital for two months under the care and treatment of C.W.1, who was directed to examine and evaluate his condition and to submit his Report before the Court by 15-07-2017. On 11-09- 2017, C.W.1 was once again examined by the Learned Trial Court pursuant to which the Court inter alia recorded that from the statement of C.W.1 it was noted that the Respondent showed no symptoms of depressive or psychiatric disorder while he was in the Hospital and that there had been considerable improvement in his condition. That, he would thus be aware of the consequences of his acts and was capable of making his defence in the Court.

6. After carefully considering the submissions made at length before us and having meticulously perused the evidence on record, the only question that falls for consideration before this Court is; Whether the Learned Trial Court correctly acquitted the Respondent of the offence under Section 302 of the IPC by extending him the benefit of Section 84 IPC?

7(i). It is apposite in this context to discuss the provisions of Section 84 of the IPC, which are self-explanatory and are extracted hereinbelow;

Illustration (a) reads as follows;

"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

The burden of proof is on A."

Thus, the burden of proving unsoundness of mind rests with the Respondent and not with the Prosecution with the caveat that the Prosecution has in the first instance to establish its case beyond reasonable doubt.

8(i). In Mst. Shanti Devi (supra) the Learned Trial Court therein found the Appellant guilty of her child's murder and sentenced her to rigorous imprisonment for life on her failure to establish the plea of insanity. The only plea before the High Court was that the Appellant was insane at the time when she killed the child so as to entitle her to the benefit of Section 84 of the IPC. The evidence on record revealed abnormal behaviour of the Appellant added to the fact that she had been hospitalized for mental illness and diagnosed with manic depressive disorder. Four doctors who had treated her deposed that she was suffering from insanity. Thus, the High Court found her entitled to the benefit of Section 84 IPC.

(iii) Learned Senior Counsel for the Respondent had relied on the ratio of Surendra Mishra (supra) to the extent that the burden of proof under Section 105 of the Evidence Act while claiming exemption under Section 84 IPC is on the accused but that it does not extend to proof beyond all reasonable doubt, but merely by a preponderance of probability. It may be clarified that even if the Appellant establishes unsoundness of mind, Section 84 of the IPC will not come to his rescue in case it is found that he was aware that what he was doing was wrong or that it was contrary to law. That, in order to ascertain the above, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime and production of medical evidence and other relevant factors. Medical documents Exhibit ‗A' and ‗C' pertain to one year before the incident and Exhibit ‗D' a good six months' after the incident, thereby shedding no light on his mental condition at the time of the incident. This Court most certainly does not ignore the fact that the Respondent suffered from mental health issues but a preponderance of probability must exist to indicate that he committed the act while under an episode or attack of insanity, for which evidence is clearly lacking herein.