Crl.Appeal No.561/01 Page 1 of 4 i.2 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : July 20, 2009 + CRL.APPEAL NO.561/2001 MOHD. SADIQ ..... Appellant. Through: Mr.Puneet Mittal, Advocate and Mr.Manoj Kumar, Advocate. versus STATE ..... Respondent Through: Ms.Richa Kapoor, APP. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes PRADEEP NANRAJOG, J. (Oral) 1. The appellant has been produced from jail pursuant to the production warrants issued vide order dated 21.5.2009. We have spoken to the appellant. He speaks coherently and claims that as of now he is perfectly fine but states that this is due to medical treatment taken by him. He remembers the unfortunate day when his daughter was murdered being 29.10.1997 and claims that on said day something happened to him. He says that he felt as if some machine had frozen his Crl.Appeal No.561/01 Page 2 of 4 brain. He regrets having murdered his daughter. 2. We had summoned the appellant for the reason there is tell-tale evidence against him of having chopped off the head of his daughter and boasted of having done so by dangling the severed head of his daughter for a public view. The wife of the appellant has deposed against him. The appellant had taken a defence of insanity but did not lead any evidence to prove the same. He claimed to have received treatment from a doctor at the Mental Hospital, Ranchi and did summon the record from said hospital, but the witness who came from the hospital stated in Court that no such record pertaining to the appellant was available in the hospital. When she deposed as a witness of the prosecution, the wife of the appellant denied the suggestions made to her that the appellant was undergoing treatment for mental sickness. 3. The result is the negation of the defence of insanity claimed by the appellant. 4. Learned counsel for the appellant very fairly concedes that in view of the evidence of the neighbour, Smt.Pushpa PW-1, Smt.Mithilesh PW-4, Smt.Nirmal PW-5 and Smt.Nuzban PW-2 the wife of the appellant it is apparent that the appellant brutally chopped off the head of his minor daughter and hence committed an act which attracts the offence of murder. The only issue raised by learned counsel is, Crl.Appeal No.561/01 Page 3 of 4 whether the necessary mens rea can be attributed to the appellant. It is urged that so diabolical is the murder that there from any reasonable person would gather that no sane person could do the act. In other words, the argument of learned counsel for the appellant is that this Court should deduce insanity from the act committed by the appellant. 5. It is settled law that the burden of proving an exception lies on the person claiming benefit of the exception. The burden to prove the facts which attract Section 84 of the Indian Penal Code lies on the accused. As held in the decision reported as 1964 (7) SCR 361 Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, 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. 6. Merely because the crime has been committed in a diabolical manner is no ground wherefrom an inference has to Crl.Appeal No.561/01 Page 4 of 4 be drawn that the accused was insane. If this be so, every offence committed in a diabolical manner would save the skin of the accused. Extreme anger, hatred or passion often results in crimes being committed in the most diabolical manner. 7. Finding no evidence to sustain the defence of insanity, we have no option but to dismiss the appeal. 8. The appeal is dismissed. 9. The appellant who has been produced from custody is directed to be taken back to the Central Jail, Tihar wherefrom he was produced. PRADEEP NANDRAJOG, J. INDERMEET KAUR, J. JULY 20, 2009 Dharmender