Through Ms. Anita Abraham, Advocate v. STATE

15. The appellant pleads to the Court that his conviction should be set aside on the ground of insanity under Section 84 IPC. The said section, under Chapter IV- General Exceptions, IPC, reads as under:

The aforesaid Section has to be read with Section 105 of the Evidence Act. The Section and Illustration (a) thereof reads as under:-

16. Legal insanity as distinguished from medical insanity envisaged and covered by Section 84 IPC is narrower and is applicable if the person accused was incapable of knowing the nature of the act or knowing that what he was doing was either wrong or contrary to law. The proper question, which is to be asked and answered, whenever a plea under Section 84 is raised, is whether the appellant/accused at the time of doing of the act, was incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. (See Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97). In other words, to establish insanity under Section 84 IPC, it has to be established that the accused was laboring under such disability, i.e. unsoundness of mind, as not to know the nature and quality of the act he was committing or the act was wrong/contrary to law. Further, the crucial time for ascertaining insanity is the time when crime was committed i.e. the time when the act or offence was in fact done. Unsoundness of mind after or before commission of the offence is not relevant, though may throw light on whether the accused was unsound when the offence was committed. (See State of Madhya Pradesh v. Ahmadulla, AIR 1961 SC 998, S.W. Mohammed v. State of Maharashtra AIR 1972 SC 2443, Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563).

17. Every man is presumed to be sane, till contrary is established. Insanity or unsoundness of mind of the type stipulated in Section 84 IPC is an exception. Illustration (a) to Section 105 of the Evidence Act, quoted above, casts burden on the accused to show that the exception carved out under Section 84 IPC is applicable and burden is on the accused to prove insanity at the time when the offence was committed. However, the burden on the accused to prove insanity is not higher than that upon a party in civil proceeding i.e. the principle of preponderance of probability applies. It is not for the accused to establish conclusively or beyond doubt that he was insane to get benefit of Section 84 IPC but he is entitled to claim insanity, if he is able to raise a doubt regarding his sanity. To decide on the question of insanity, the Court should examine the behavior and antecedents of the accused before, during and subsequent to the event, to the extent they are relevant to record a finding on the mental condition of the accused. However, while doing so the act itself or absence of motive is not consequential and determinative. Hidayatullah J. in Baswantrao Bajirao Vs. Emperor, 1949 Cri.L.J., 181 where the accused had killed his two wives, has opined:-

18. Criminal offences, including Section 302 IPC, mandate and require proof of mens rea. Section 84 IPC does not affect the general burden of proof and the prosecution must establish mens rea. The general burden of proof that the accused person had requisite mens rea continues to remain upon prosecution as observed in Sheralli Wali Mohammed (supra), wherein the following passage from Dahyabhai Chhaganbhai Thakkar (supra) has also been quoted:- “(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 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 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.” Failure to prove mens rea or absence of mens rea when mandated and requirement of an offence, will result in acquittal but this should be distinguished from “insanity” as defined and granted immunity under Section 84 IPC. These are two separate lines of defences and require distinct considerations. Normally onus to prove mens rea is on the prosecution and failure to prove will cause acquittal on merits because no offence is proved to be committed. Question of “insanity” relates to disease or malfunctioning of mind and the onus is on the accused.

19. When we come to the facts of the present case, Balwinder Kaur (PW-1), the wife of the appellant, in her cross-examination categorically denied that the appellant was suffering from mental disorder before the occurrence. She had denied that the appellant was taken to G.B. Pant Hospital and then referred to RML Hospital for further treatment. The appellant, in person, wanted to put questions to PW-1 and the Trial Court permitted him to cross-examine PW-1. When cross-examined by the appellant, PW-1 has stated that she was not aware whether the appellant had gone to DDU Hospital or not. She, however, claimed that the appellant was not behaving properly with her children. The appellant was earlier running a three-wheeler, but wanted to drive a truck. He continuously insisted that PW-1 should get money from her parental home for purchase of a truck. The appellant had sold the three-wheeler and was unemployed. These issues led to constant quarrel between them.

20. Arvin (PW-5) had denied that the appellant was under medical treatment in a hospital. Landlord Iqbal Singh (PW-10), in his cross-examination, has stated that he had never seen the appellant in insane condition during his stay in the house. Few minutes after the incident, when PW-10 reached the crime spot and intervened, the appellant did not react or quarrel with him.

21. To support the appellant’s plea, he had produced five defence witnesses.

22. Surender Singh (DW-1), who worked as Record Clerk at Ram Manohar Lohia Hospital, has produced attested OPD Entry Register dated 9th March, 2004 wherein it is recorded that Paramjeet Singh had Psychiatric OPD visit. At

┌───────────────────────────────────────────────────────────────────────────────────┐
│ Serial No.155 of the said register, relating to 9th March, 2004, name of the      │
│ patient Paramjeet Singh, age 45 years stands recorded, but the said witness did   │
│ not have any personal knowledge about the illness or the psychiatric or other     │
└───────────────────────────────────────────────────────────────────────────────────┘

23. HC Jagbir Singh (DW-2) has proved DD No.17 (Ex. DW-2/A) dated 27th March, 2004, which records complaint made by Balwinder Kaur (PW-1) and mentions that ASI Harpal Singh went to WZ-46, Plot No. 39, Ravi Nagar where the complainant Balwinder Kaur (PW-1) gave a written complaint that there were some domestic issues with her husband who has been mentally disturbed for long and that she was getting him treated in the hospital.

24. Gurmeet Singh (DW-3), the elder brother of the appellant, has testified that the appellant had an adamant nature since his childhood and used to become mentally disturbed, at times. For the first time DW-3 saw this condition of the appellant when, in year 1980-1981, the appellant was deported back to India from Dubai. According to DW-3, the appellant used to get mentally disturbed whenever he faced tough times, in his life. 8-10 days prior to the incident his brother-in-law Amarjeet Singh called him and informed that the appellant had been detained in police post Khayala pursuant to the complaint made by his wife. The appellant at that time was mentally unfit and disturb and after talking to PW-1, the said witness came to know that the appellant was undergoing treatment for his mental ailment at some hospital. DW-3 in his crossexamination, however, accepted the position that the appellant used to remain mentally disturbed because of losses in business and sometimes when another person did not obey him.

25. Bhupinder Kaur, wife of Amarjeet Singh and sister of the appellant, had also appeared as a defence witness. She has been described as DW-4 though she should be treated as DW-6. She has stated that accused was perfectly right and was of good temperament, in her brief deposition. She has stated that the appellant was a truck driver and used to remain mostly outside.

26. Dr. Madan Lal (DW-4), Senior Medical Officer, Central Jail No.1, Tihar had produced the admission and discharge records of the appellant. He had also produced the summary sheets dated 5.4.2004, 8.8.2004, 24.11.2004, 28.2.2010, 18.2.2010, which were collectively marked Ex.DW 4/A. As per DW-4, the appellant was given treatment for adjustment disorder, which was explained as failure to adjust with the surroundings. However, according to DW-4, this did not amount to or show insanity.

27. Dr. Mohd. Niyaz Alam, Medical Officer, Central Jail No.3, Tihar has appeared as DW-5. He has mentioned that the appellant was admitted to jail hospital from 25th February, 2006 to 27th February, 2006 for manic episode, which means that the patient became violent. Thereafter, he was again admitted to the BT Ward from 20th October, 2008 to 29th October, 2008 for abnormal behavior which means that he was not listening to the instructions and doing the opposite, as per his wishes.

28. The test for application of Section 84 IPC, as noticed above, is that the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or was incapable of knowing that what he is doing is either wrong or contrary to law. The words “he was not capable of knowing that he was acting wrong or contrary to law” refers to the accused’s consciousness in relation to the act on those affected by it or accused’s consciousness in relation to himself. [See Baswantrao Bajirao (supra)]. In everyday life terms like, mental illness/disorder, behaviour disorder/abnormality, psychological disorder etc. are used loosely and applied to behaviour which is highly unusual, specially when an individual indulges in aggression in speech/conduct or physical violence. Cause of aggression/violence, as per modern social psychologists, is not programmed/attributed to a single factor but is triggered by a wide range of input variables which influence arousal, affective stages and cognitions. (General Affective Aggression Model proposed by Anderson in 1996/1997. Also see the Glossary of Mental Disorder and glossary published by World Health Organisation and other institution/organisation/governments). However, Section 84 IPC provides immunity in limited category of cases, i.e., unsound mind which has the stipulated consequences. The term “unsoundness of mind” in Section 84 IPC is not a medical term but a legal concept. Crimes are often committed or are a result of mental disorder/abnormality as in the cases of a serial killers like David Berkowitiz but the test of “insanity” as a legal term is restrictive and more precise. The legal test is that the accused because of disease of mind should be crippled by defect of reason from knowing the nature and quality of the act he was doing or if he did know it, then he did not know that it was wrong (morally) or was contrary to law. (Questions of sympathetic treatment in punishment or grant of probation, when permissible, are separate aspects).

29. We have scrupulously examined the evidence placed before the Court to prove that the appellant was not of sound mind (non compos mentis) when he committed the said offence. From the statement of various defence witnesses which are to the effect that the appellant used to remain mentally disturb and do not establish that he was insane as defined in Section 84 IPC. The witnesses have merely testified that the appellant was quarrelsome, adamant and used to become angry when stressed or when he faced difficult times. It becomes apparent that he was under treatment for the said purpose, when we read DD No.17, Ex.DW 2/A recorded on 17th March, 2004, the complaint of PW-1. Relevant portion of which reads as under:- “Smt. Balwinder Kaur has produced me an application bearing the statement that she had made a telephone call to Police after an exchange of hot words with her husband on domestic tiffs. My husband is under mental problem for past long time and he is under treatment in a hospital and he use to become adamant due to his stubborn attitude. Now I am taking him to the hospital with the help of his brother Surjeet Singh and his sister Bhupinder Kaur.”

30. A reading of the aforesaid statement elucidates that the appellant was mentally disturbed and had quarrelsome nature, but it cannot be said that he was incapable of understanding the nature and character of his acts and consequences thereof qua to him and others. He knew the nature and quality of the act which he was committing and that what he had done was wrong. It cannot be said that the appellant was incapable of distinguishing right or wrong or not knowing the nature, consequences and effect of the acts done by him. This becomes clear from his conduct at the time of the incident. From the statement of PW-1 and PW-2, it is clear that the appellant tried to prevent the PW-2 from reaching out for help. In fact, in order to prevent PW-2 from reaching the door, the appellant inflicted injuries on PW-2’s ears. It was only when PW-1 caught hold of the appellant that PW-2 could run out and get help. Therefore, he was not ignorant of what he was doing. The fact that he was mentally disturbed did not mean that he was in the state of confusion or suffering from mental debility to the extent required and mandated by Section 84 IPC.

31. It has been clarified in Elavarasan v. State (2011) 7 SCC 110 that the mere fact that the appellant had assaulted his immediate family members was not ipso facto suggestive of his being an insane person. It further held that:

32. Iqbal Singh (PW-10) has stated that at 4.30 A.M., Gullu @ Daljit Singh, son of Paramjeet, called him and when he reached the room of appellant Paramjeet, he saw two blades of scissors in appellant’s hands. The appellant had caught hold of PW-1 by her hair and was causing injuries to her. Preeti @ Jaspreet Kaur was lying on the bed and was profusely bleeding. Clothes of Gullu and Silki @ Arvin Kaur were also blood stained. He questioned the appellant that what he had done and asked him to throw away the blades. The appellant, on his asking, threw the blades. PW-10 brought the appellant out of his room. Thereafter, police was informed. The three children and PW-1 were taken to the hospital. The aforesaid conduct and behaviour of the appellant clearly shows that he was fully conscious and had knowledge as to what he was doing or had done.

33. In view of the aforesaid discussion, the appellant’s plea of insanity, as mandated and stipulated under Section 84 IPC, has to be rejected. We do not find any merit in the present appeal and the same is dismissed. The conviction and sentence of the appellant under Section 302 IPC for murder of Jaspreet Kaur and under Section 307 IPC for attempt to murder Balwinder Kaur, Arvin Kaur and Daljit Singh is maintained. The appeal is disposed of. -sd- (SANJIV KHANNA) JUDGE -sd- (S. P. GARG)

JUDGE JANUARY 4, 2013 LR/NA/kkb