Plea for Mitigating Circumstances should be raised during the Trial itself

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 15510 Arising out of Special Leave PetitionNo. 33810 VERSUS The Stateand Section 25 of the Arms Act 1959 was FACTS & CASE HISTORY The case of the prosecution is that the victim complainant Tabban Khanwas riding his motorcycle on the main road near Shahdara around 11:30PM on 17.05.2001 when he stopped to ease himself near a fishpond. Suddenly three boyscaught hold of him and started assaulting him. They were armed with a knife and revolver Upon extortion the complainant handed over a bundle of five hundred rupees notes totalling around thirty thousandto the boys who then contemplated murdering him by stabbing so that he would not report the matter to the police. Hearing commotion of passers by the three boys left the complainant and ran towards a warehouse. The complainant then returned to his home and reported the matter to the jurisdictional police the following evening. This complaint was subsequently converted into an FIR on 20.05.2001 at 7:45PM A police party on 20.05.2001 at about 8:30PM during routine checking of buses near GT Road noticed three boys surreptitiously deboarding a bus through the rear door. On suspicion Constable Vinod Kumar and Constable Prakash Chand chased and apprehended them and recovered a prohibited buttondar knife from the appellant and his co accused. They also confessed to having robbed the present complainant. All three were arrested and produced before the Metropolitan Magistrate for a Test Identification Paradethe following day which they refused to undergo. The prosecution examined twelve witnesses during trial which included the victim complainantthe Metropolitan Magistrate who sought to conduct the TIP proceedings and a total of ten policemen. Sketches of the knife arrest memos site plans and recovered money and weapons were admitted in evidence. The appellant and his co accused plainly denied the allegations and claimed that the case was planted by the police upon their failure to pay a bribe of rupees twenty five thousand. They however led no evidence in defence The trial Court discarded the defence plea for want of supporting material and further found the likelihood of false implication being remote All twelve prosecution witnesses were noted to have withstood cross examination and their testimonies were designated as being stellar. The trial Court explained the absence of any public witness as being nothing abnormal given the circumstances of the case. The unreasoned refusal of the accused to take part in the TIP proceedings was found to be highly incriminating and substantiating their guilt. The trial Court thus held all three accused guilty of robbery with attempt to cause grievous hurt and sentenced them to seven years rigorous imprisonment under Section 397 34 of IPC five years rigorous imprisonment under Section 392 34 of IPC two years rigorous imprisonment under Section 25 of the Arms Act and fine of rupees five thousandhad no motive to falsely implicate the appellate and or to allow the real culprits to go scot free. The refusal to participate in the TIP proceedings and the lack of any reasons on the spot undoubtedly establish the appellant’s guilty conscience and ought to be given substantial weight.1 The three day delay in registration of FIR as projected by the appellant is devoid of factual basis. The original record shows that the complaint was in fact registered within a few hours of the incident on 18.05.2001. It was because of preliminary police enquiry that another two days passed between reporting and subsequent lodging of FIR on 1 Ashwani Kumar v. State of Punjab 6 SCC 308 ¶ 19 20.05.2001. 14. Pleas of unsoundness of mind under Section 84 of IPC or mitigating circumstances like juvenility of age ordinarily ought to be raised during trial itself. Belated claims not only prevent proper production and appreciation of evidence but they also undermine the genuineness of the defence’s case. 15. As noted by the High Court no evidence in the form of a birth certificate school record or medical test was brought forth nor any expert examination has been sought by the appellant. Instead the statement recorded under Section 313 CrPC shows that the appellant was above 18 years around the time of the incident which is a far departure from the claimed age of 15 years. The plea of mental disorder too remains unsubstantiated. No deposition was made by any witness nor did the appellant himself claim any such impairment during his Section 313 CrPC statement. On the contrary his conduct of running away from the spot of the crime on 17.05.2001 as well as the attempt to escape from the bus on 20.05.2001 evidence an elevated level of mental intellect. The answers recorded in response to the questions put forth by the Additional Sessions Judge at the Sec 313 CrPC stage are also not mechanical or laconic. For example the appellant explains his refusal to participate in the TIP proceedings by alleging that his face had already been shown by the police to the 17. Mere production of photocopy of an OPD card and statement of mother on affidavit have little if any evidentiary value. In order to successfully claim defence of mental unsoundness under Section 84 of IPC the accused must show by preponderance of probabilities that he she suffered from a serious enough mental disease or infirmity which would affect the individual’s ability to distinguish right from wrong.2 Further it must be established that the accused was afflicted by such disability particularly at the time of the crime and that but for such impairment the crime would not have been committed. The reasons given by the High Court for disbelieving these defences are thus well reasoned and unimpeachable 18. Regardless thereto and given the ingrained principles of our criminal law jurisprudence which mandates that substantive justice triumph limitations of procedure this Court on 22.07.2020 tried to enquire into the mental health of the appellant by requesting the learned Additional Solicitor General to get the appellant mentally examined. However notwithstanding such efforts the appellant who had been granted bail by this Court earlier is untraceable. The government counsel submits that the appellant is not residing at his claimed address since the past eight years and even the appellant’s own counsel fairly admitted to not having received any instructions from his client since the past ten years. We are thus left with no option but to hold that the plea of mental illness is nothing but a made up story and is far from genuine 2 TN Lakshmaiah v. State of Karnataka 1 SCC 219 ¶ 9 19. Given such inability of the appellant to establish juvenility or insanity raise any doubt regarding guilt and considering the detailed reasons accorded by the High Court the reliable testimony of twelve witnesses as well as the leniency shown in sentencing we see no reasons to interfere with the impugned order(s). The appeal is accordingly dismissed. The appellant’s bail bonds are cancelled and the respondent State is directed to take the appellant into custody to serve the remainder of his sentence DATED : 19.08.2020 S. ABDUL NAZEER

Summary: The Hon’ble Supreme Court of India in Mohd. Anwar V. The State, N.C.T of Delhi [Criminal appeal No. 1551 of 2010], held that any plea for unsoundness of mind under section 84 of IPC or mitigating circumstances like juvenility of age, ordinarily ought to be raised during trial itself.   The Apex Court while relying on TN Lakshnaiah V. State of Karnataka [2002 1 SCC 219-para 9] observed that the production of an OPD card and statement of mother on an affidavit has little evidentiary value and in order to make a successful defence of mental unsoundness u/s 84 IPC, the accused should show preponderance of probabilities that he suffered from a serious enough mental disease or infirmity which would affect the individual’s ability to distinguish right from wrong, in addition to this it should also be established that the accused was afflicted by such disability at the time of crime and if it was not due to the impairment the crime would not have occurred.   It was further observed by the Hon’ble Supreme Court of India that “At the outset, it must be highlighted that appellate Courts ought not to routinely re-appreciate the evidence in a criminal case. This is not only for reasons of procedure, expediency, or finality; but because the trial Court is best placed to holistically appreciate the demeanour of a witness and other evidence on record. Given the concurrent finding of the Courts below on key aspects of the robbery, we do not find it a fit case for such re-appraisal of evidence.”