IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 283 of 2000 Reserved on: 28.10.2010 Date of Decision: 24.12.2010 State of H.P. …Appellant. Versus. Jagdish Chand …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? Yes. For the appellant: Mr. Vivek Thakur, Addl. Advocate General. For the respondent: Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Session Trial No. 10 of 1997 decided on 4.10.1999 whereby the accused was acquitted of having committed offence punishable under Section 302 IPC only on the ground that the accused was a schizophrenic and therefore, unable to comprehend what crime he had committed. 2. The facts of this case are not disputed. PW-1 Smt. Upani Devi is the widow of deceased Garibu Ram. According 2 to her at about 8.30 a.m on 3.9.1996 her husband was washing his face in the Veranda of the house. In the meantime, the accused came there and pushed her husband who fell down. Thereafter, the accused kicked her husband. He then beat her husband with a stone on the temporal region. She raised an alarm and a number of people came to the spot. Her husband died on the spot. 3. The accused has not denied the allegation that he killed the deceased. The defence raised is that the accused is a person who had been undergoing treatment for severe mental disorder. He could not judge what was right or wrong and committed the murder in a fit of insanity. The learned trial Court accepted the plea of insanity set up by the defence and acquitted the accused. Hence, this appeal. 4. It is well settled law that the burden to prove the plea of insanity lies upon the person who takes up such a defence. On behalf of the accused four witnesses have been examined. The first is Dr. Virender Mohan, who runs a psychiatric clinic at Dharampur. According to him accused Jagdish Chand had first come for treatment to him on 30.11.1991. He was diagnosed as a case of paranoid schizophrenia. The ailment was about one year old. The accused was admitted on 30.11.1991 and discharged on 17.12.1991. During this period six electric shocks were given to the accused. Thereafter the accused was again admitted 3 on 18.12.1992 and discharged on 28.12.1992. Diagnosis was the same and this time he was given four electric shocks. Thereafter, the accused visited the clinic of this doctor on 4.4.1997 and 25.5.1998 after the murder as an out door patient and was given medicines. He has also proved the medical certificate Ext.DA, which shows that the accused was also treated during the period 5.12.1996 to 5.1.1997 but the doctor stated that he could not give any evidence of the exact treatment since he did not have the entire hospital record with him. The witness also proved Ext.DB to Ext.DE issued by him which showed that the accused had been advised bed rest on account of psychiatric disorder from 6.1.1997 to 5.3.1997, 6.3.1997 to 6.4.1997, 7.4.1997 to 7.6.1997, 8.6.1997 to 31.5.1998. The relevant portion of the statement of the witness reads as follows:- “Paranoid schizophrenia is a mental ailment. A person afflicted with paranoid schizophrenia has the tendencies of aggression, violence, homicidal and suicidal. The patient under such spells is devoid of the sense and power to understand his or her acts or consequences thereof.” 5. The witness further went on to say that as and when the accused kept on taking the medicines his condition used to improve and when he neglected to take medicines his condition used to deteriorate. He has admitted in cross- examination that a man suffering from paranoid schizophrenia 4 has lucid intervals during which he is perfectly normal, with or without medicines. According to him, since on or about 3.9.1996 when the murder was committed the accused was neither under his observation nor admitted in his clinic he was not in a position to state about his mental health at that time. 6. DW-2 Devi Chand, has proved the order Ext.DL passed by this Court on the application of the accused whereby this Court directed that the accused be got examined from the psychiatrist at Indira Gandhi Medical College and Hospital at Shimla. The doctor was also required to submit his report to the Court. 7. Consequent to this order the accused was examined by PW-4 Dr. Yoginder Mohan, who was at the relevant time Professor and Head, Department of Psychiatry, IGMC. He stated that in compliance with the directions of this Court, referred to above, he examined Jagdish Chand accused on 10.10.1996. Case history of the accused has been proved as Ext.DW-4/A and the history was given by the son of the accused. Basically the history shows that the petitioner had been under treatment for psychiatric disorder. The doctor opined that the accused is suffering from paranoid schizophrenia. Therefore, his opinion tallies with that of DW-1. In Ext.DW-4/A it has also been recorded that the accused was suffering from mental ailment since the year 1991. Constable Lal Chand, accompanying the accused, had 5 informed the doctor that the accused during the journey from Kalpa to Shimla used to put filth (spit, nasal discharge, stone, earth etc.) in his pocket. He used to laugh at inappropriate times. He also used to suddenly start running. The statement of this constable also indicates that the accused was not totally mentally stable. DW-4 referred the patient to PGI Chandigarh where clinical psychological tests were conducted and the summary is as follows:- “Sh. Jagdish Chand was referred by IGMC, Shimla for medical evaluation of the above said accused as required by Shri A.S.Jaswal, Chief Judicial Magistrate, Kinnaur Distt. Case No. FIR 85/96 dated 4.9.1996 under Section 302 IPC, P.S Bhawa Nagar, Distt. Kinnaur:- Patient was cooperative and communicative. He, however, maintained a domineering posture talking authoritatively. He appeared to be hostile, aggressive but did not use harsh language. On personality questionnaire his psycholicism score and neuroticism score were high (both 1.5 SD) high). On Rorschach he gave 28 responses reaction time was quick. There has been card thinking. Quality of responses was poor. There was perseveration and popular was only one. His functioning intelligence and organizational capacity are markedly impoverished. There is marked disturbance in his thinking and perception. He is pre-occupied with ideas of ‘ghost’ and aggressive harmful animals. His adjustment is poor. Inter 6 personal relationship disturbed. His thinking is not in group conformity, ego strength low. Summary:- Sh. Jagdish Chand who was brought by the constable was found to have high psycholicism and neuroticism. His thinking, feeling and perception are markedly disturbed. He is pre- occupied with an idea of ‘ghost’ and dangerous animals. Protocol had contaminated responses, peese varatory responses, poor form responses, low popular and constriction in content category, suggesting a psychotic protocol of schizophrenia nature.” 8. Thereafter, DW-4 gave his opinion to this Court that the accused is suffering from paranoid schizophrenia. 9. The contention raised on behalf of the State is two fold. Firstly, that the petitioner is a school teacher working in a Government job and therefore, there must be a presumption that he is sane and he cannot be permitted to take the plea of insanity. It is also contended on behalf of the learned Additional Advocate General that the accused was treated for psychiatric disorder by DW-1 about four years prior to the incident and thereafter he was treated only after the occurrence took place. He contends that there is no evidence to show that at the time when murder was committed the accused was insane. 10. Section 84 of the Indian Penal Code reads as follows:- 7 “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.” 11. The Apex Court in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563, dealing with Section 84 laid down the following principles:- “(9). When a plea of legal insanity is set up, the 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 when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.” 12. Thereafter in Vijayee Singh and others vs. State of U.P. AIR 1990 SC 1459, the Apex Court held that when an exception is sought to be pleaded as a defence to a crime then the burden lies upon the defence to prove the exception but this did not absolve the prosecution from discharging its initial burden of establishing the case beyond all reasonable doubts. In Dharmendrasinh alias Mansingh Ratansinh vs. State of Gujarat, 2002 SCC (Cri) 859, the Apex Court 8 again held that the burden is on the defence to prove the plea of insanity at the relevant time. In Shrikant Anandrao Bhosale vs. State of Maharashtra, AIR 2002 SC 3399, the Apex Court was dealing with a case where the accused took the plea of insanity. The Apex Court held that it stands proved that the appellant had a family history of psychiatric illness since his father was suffering from the same. The accused himself was treated for unsoundness of mind since 1992. The incident took place on 27th June, 1994 and thereafter the accused had been taken to the hospital regularly for treatment and that the accused had not made any attempt to run away and committed the crime in day light and had not tried to hide it. There was no motive for the crime. The Apex Court dealing with what is paranoid schizophrenia held as follows:- “10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment. Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develops into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but are afterwards changes into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some 9 unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. Disturbances of general sensation gives rise to hallucinations, which are attributed to the effects of hypnotism, electricity wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversations is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. [Modi's Medical Jurisprudence and Toxicology (22nd Edn.)] 11. Further, according to Modi, the cause of schizophrenia is still not known but hereditary plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of patient, he is source of danger to himself and to others.” 13. After discussing the entire evidence the Apex Court held that the accused was entitled to the benefit under Section 84 IPC and hence set-aside his conviction. 10 14. In Bapu alias Gujraj Singh vs. State of Rajasthan, (2007) 3 SCC (Cri.) 509, the Apex Court dealing with Section 84 held as follows:- “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 insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 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, page 166 has observed that if a persons cut off the head of a sleeping man because it would be 11 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 Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523 (SC)), held that: “the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have necessary mens rea for the offence.” 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 Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case. (1843) 4 St. Tr. (NS) 847). Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of 12 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.” 13 15. It is in the light of law laid down by the Apex Court we have to decide the present case. It is well established that a person suffering from paranoid schizophrenia can live and work as a normal human being as long as he keeps taking medicines. There can be long periods when he behaves normally but the most important factor is his behaviour at the time of the incident itself. 16. In this case, we may make reference to the statement of PW-1 Upani Devi, widow of the deceased. According to her, while her husband was washing his face the accused came and pushed him and her husband fell down. Thereafter the accused kept hitting the deceased and kicked him and gave him blows of a stone on the head. She also states that her husband kept long hair like a Sadhu. In cross- examination she admitted that the accused used to reside at a distance of only 10 yards. She also admitted that her husband used to indulge in tantric practices. She clearly states that while inflicting the injuries the accused was stating “Shivji Ka Bail Mara Hai Maine” ( I have killed the bull of lord Shiva). It is well know that the bull is the Vahan (chariot/ vehicle) of lord Shiva. From her statement, it is also clear that the police party came to the village on the next day. The accused did not try to run away but stayed in his house. She has clearly admitted that there was no acrimony between the accused and her husband and in fact their relations were 14 good. Therefore, from her statement only it can be gathered that the accused had no motive. The deceased was indulging in tantric practice and the accused while hitting the deceased was shouting that he had killed the bull of lord Shiva. 17. PW-2 Preshu Ram is the nephew of the deceased. He is the other eye witness to the occurrence. According to him when deceased Garibu was washing his face the accused came running to the Varanda and assaulted Garibu. He gave a blow to Garibu who fell down below the Varanda. Thereafter, the accused took a stone and caused injuries on the head of deceased Garibu. This witness has also stated that while inflicting injuries the accused was proclaiming loudly that the deceased was the bull of Shiva. It is also important to note that both these witnesses who are the wife and nephew of the deceased have stated that the deceased Garibu, who was a compounder by profession, used to give injections to the accused person at least once a month. 18. From the entire evidence on record, it stands established that 1) the accused remained under treatment of DW- 1 for psychiatric disorder, namely, paranoid schizophrenia from 30.11.1991 till 17.12.1991 and from 18.12.1992 to 28.12.1992 as an indoor patient. During this period he was given a number of electric shocks. 15 2) the accused thereafter came for follow up advice and treatment. 3) that according to DW-1 as long as the accused was taking medicines he remained normal but when he was not taking medicines his position deteriorated. 4) the deceased was giving an injection once a month to the accused. 5) immediately, after the occurrence an application was filed on behalf of the accused for referring him to the hospital for psychiatric treatment. On the directions of this Court DW-4 conducted the test on the accused and he also found that the accused was suffering from paranoid schizophrenia. It was also found that the behaviour of the accused was abnormal. 6) it also stands proved on record that the accused killed Garibu Ram in open day light. He had no motive to kill Garibu. He made no attempt to hide or run away. 7) he at the time of committing the offence was stating that he was killing the bull of lord Shiva. 16 19. From the aforesaid facts, which are proved on record, it is apparent that the accused both prior to the offence and immediately after that was found to be suffering from a severe psychiatric disorder, namely, paranoid schizophrenia. His behaviour at the time of the offence itself also clearly indicates that he was suffering from a delusion which itself is one of the main manifestations of paranoid schizophrenia. 20. In view of the above discussion, we are of the considered opinion that the learned Sessions Judge was fully justified in holding that the accused had proved the defence of insanity set up by him. The appeal is accordingly dismissed. Bail bonds discharged. ( Deepak Gupta ) Judge. 24th December, 2010 (Sanjay Karol ) ™ Judge.