Dharmdev Kumar vs The State Of Bihar on 13 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.403 of 2017
Arising Out of PS.Case No. -406 Year- 2014 Thana -SHASTRINAGAR District- PATNA

Dharmdev Kumar, aged about 38 years, son of Ramvilas Mahto, resident of
Jai Nagar, PS Sonbarsa, Distt-Sitamarhi at present, resident of Shastri
Nagar, Quarter No. 368/800 PS Shastri Nagar, Distt- Patna.

…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ashok Kumar, Adv.
Mr. Shekhar Kumar, Adv.
Mr. Radha Raman Pradhan, Adv.
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date 13-11-2017

Appellant, Dharmdev Kumar has been found guilty

for an offence punishable under Section 307 IPC and sentenced to

undergo RI for 10 years as well as to pay fine of Rs. 10,000/- in

default thereof, to undergo SI for six months additionally, under

Section 27 of the Arms Act and sentenced to undergo RI for 5

years as well as to pay fine of Rs. 5000/- in default thereof, to

undergo SI for 3 months additionally with a further direction to

run the sentences concurrently vide judgment of conviction dated

22.12.2016 and order of sentence dated 02.01.2017 passed by

Additional Sessions Judge, 9th Patna in Sessions Trial No.

91/2015.

2. Brahamdev Kumar (PW 3) who happens to be full

brother of appellant, Dharmdev Kumar gave his Fard-e-beyan on
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10.07.2014 disclosing therein that his brother, Dharmdev Kumar is

suffering from some sort of mental ailment, as a result of which,

he used to abuse the family members as well as indulged in

physical activity with them and for that, he was to be taken to the

doctor and for that, on the alleged date and time of occurrence, he

had procured an auto-rickshaw whereupon he was to be taken to

the doctor. Dharmdev Kumar was directed to sit inside the auto-

rickshaw whereupon, he began to flee. He was apprehended and

was to be taken inside the auto-rickshaw, during midst thereof,

took out a pistol which he possessed on account of having been

allotted by the department being a Police Constable deployed at

Special Branch and fired 5-7 rounds causing injury to auto driver,

Rajesh Kumar as well as his companion namely, Vipul Kumar.

Police arrived and apprehended Dharmdev Kumar.

3. On the basis of the aforesaid Fard-e-beyan,

Shashtri Nagar PS Case No. 406/2014 was registered whereupon,

investigation commenced and concluded by way of submission of

charge-sheet facilitating the trial which concluded in a manner as

indicated above, subject matter of the instant appeal.

4. The defence case as is evident from the mode of

cross-examination as well as statement recorded under Section

313 of the CrPC is that of complete denial. It has also been

submitted that right from initial version of the prosecution, it is
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apparent that appellant was suffering from insanity since before

and for that purpose, he was to be taken to the doctor and during

midst thereof, occurrence as alleged had taken place. That being

so, appellant is entitled for protection in terms of Section 84 of the

IPC whereupon should have been acquitted.

5. In order to substantiate its case, prosecution had

examined altogether ten PWs out of whom, PW-1, Rajesh Kumar,

PW-2, Uday Kumar , PW-3, Brahamdeo Kumar, PW-4, Tripurari

Prasad, PW-5, Hawaldar Md. Jiglai, PW-6, Vipul Kumar, PW-7,

Suhail Ahmad, I.O., PW-8, Dr. Kaushal Kishore Keshari, PW-9,

Dr. Sumit Saran and PW-10, Sunil Kumar Singh. Side by side had

also exhibited Ext-1, Signature of informant over Fard-e-beyan

and Ext-2, Charge-sheet, Ext-3, Injury Report relating to PW-6,

Vipul Kumar, Ext-4, injury report relating to PW-1, Rajesh

Kumar.

6. Neither oral nor documentary evidence has been

adduced on behalf of appellant.

7. While challenging the finding recorded by the

learned lower court, it has been submitted on behalf of appellant

that the same happens to be perverse, illegal as well as suffering

from surmises in the background of the fact that there happens to

be complete non application of judicial mind while appreciating

the facts of the case. In order to substantiate the same, it has been
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submitted that the edifice of the prosecution case speaks with

regard to insanity of the accused. Even at the time when

occurrence took place, he was to be taken to the doctor on account

thereof. Even being Constable having loaded pistol along with him

as the family members were not in a position to command over the

same and on account thereof, was possessed by the appellant and

further, the same was used during course of occurrence as alleged

could not attract culpability under Section 307 IPC as well as 27

of the Arms Act under the garb of protection having laid down in

terms of Section 84 of the IPC. Furthermore, it has also been

submitted that it happens to be obligatory on the part of the

accused/appellant to substantiate such plea as it falls within the

category of general exception as well as required under Section

105 of the Evidence Act but, the aforesaid exercise is not to be

reckoned like obligation which the prosecution is to discharge

rather by way of preponderance of probability which could be

without placing, adducing, examining the witnesses, exhibiting the

documentary evidence rather even could be perceived from the

evidence of the witnesses. From the evidence available on the

record, it is apparent that the material is found coming out

therefrom in sumptuous form giving credibility with regard to

insanity of the appellant since before, during course of

commission of the occurrence. It has also been submitted that
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there happens to be laches at the part of the prosecution during

course of trial blurring its fate and to explain the same, it has been

submitted though witnesses have been examined but seizure list

has not been exhibited wherefrom it could be said that arm and

ammunitions were seized from the possession of the appellant and

in likewise manner, prosecution also failed to exhibit the FSL

report relating to examination of so alleged seized pistol and

cartridges. Apart from this, it has also been submitted that so far

material witnesses are concerned, none other than PW-6 Vipul

Kumar had supported the case of the prosecution and so far

evidence of Vipul Kumar (PW 6) is concerned, the same could not

be accepted in the background of evidence of PW-1, the driver of

the Auto-rickshaw and further having no occasion to access with

regard to appellant since before making identification suspicious

one. So, the cumulative effect did not justify the finding recorded

by the learned lower court and is, accordingly, fit to be set aside.

8. It has also been submitted that trial of appellant has

been conducted contrary to the provision of law. Whenever an

accused, being insane comes for trial, he is to be examined by a

board constituted by an order of Civil Surgeon, and if the report

divulges insanity, then in that circumstance, trial has to be

withheld till another report speaking about normal condition. No

such effort was ever taken by the learned lower court whereupon,
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trial with its conclusion vitiates.

9. Learned APP controverting the submissions having

been made on behalf of appellant, has submitted that the learned

lower court had answered all the intricacies so involved during

course of trial including that of protection which the appellant

claimed in accordance with Section 84 of the IPC. Furthermore,

the learned lower court had also minutely analyzed the evidence

before inferring the conclusion adverse to the appellant and the

reasons so assigned happens to be just, legal. That being so, the

appeal is fit to be dismissed.

10. Before coming to the factual aspect, first of all,

applicability of Section 84 of the IPC is to be seen. Section 84 of

the IPC falls under the category of general exceptions whereunder,

a legal fiction has been allowed in favour of accused to declare

him innocent in case, the criminal activity having been committed

by him happens to be during course of insanity whereunder he is

found completely incapable to perceive the action followed with

its outcome. For better appreciation Section 84 of the IPC is

quoted below:-

Section 84. 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.

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11. Because of the fact that it happens to be within the

category of general exceptions, on account thereof, some sort of

obligation has been cast upon the accused as prescribed under

Section 105 of the Evidence Act putting accused under obligation

to substantiate the same.

12. To what extent the accused is expected to discharge

his obligation, has been considered by the Apex Court in

Dahyabhai Chhaganbhai Thakkar v. State of Gujarat reported

in AIR 1964 1563 has held as follows:-

5. Before we address ourselves to the facts of the
case and the findings arrived at by the High Court, it would
be convenient to notice the relevant aspects of the law of
the plea of insanity. At the outset let us consider the
material provisions without reference to decided cases. The
said provisions are:

INDIAN PENAL CODE Section 299–Whoever
causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as
is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of
culpable homicide.

Section 84–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.

INDIAN EVIDENCE ACT Section 105–When a
person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of
the General Exceptions in
the Indian Penal Code (XLV of
1860) or within any special exception or proviso contained
in any other part of the same Code, or in any law defining
the offence, is upon him, and the Court shall presume the
absence of such circumstances.

Section 4-“Shall presume”: Whenever it is directed
by this Act that the Court shall presume a fact, it shall
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regard such facts as proved unless and until it is disproved.
“Proved”-A fact is said to be “proved” when after
considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case,
to act upon the supposition that it exists.

“Disproved”-A fact is said to be disproved when,
after considering the matters before it, the Court either
believes that it does not exist, or considers its non-existence
so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it does not exist.
Section 101–Whoever
desires any Court to give judgment as to any legal right or
liability dependent on the existence of fact which he asserts,
must prove that those facts exist. When a person is bound to
prove the existence of any fact.. it is said that the burden of
proof lies on that person.

It is a fundamental principle of criminal
jurisprudence that an accused is presumed to be innocent
and, therefore, the burden lies on the prosecution to prove
the guilt of the accused beyond reasonable doubt. The
prosecution, therefore, in a case of homicide shall prove
beyond reasonable doubt that the accused caused death with
the requisite intention described in
s. 299 of the Indian
Penal Code. This general burden never shifts and it always
rests on the prosecution. But, as
s. 84 of the Indian Penal
Code provides that nothing is an offence if the accused at
the time of doing that act, by reason of unsoundness of
mind was incapable of knowing the nature of his act or
what he was doing was either wrong or contrary to law.
This being an exception, under
s. 105 of the Evidence Act
the burden of proving the existence of circumstances
bringing the case within the said exception lies on the
accused; and the court shall presume the absence of such
circumstances. Under
s. 105 of the Evidence Act, read with
the definition of “shall presume” in
s. 4 thereof, the court
shall regard the absence of such circumstances as proved
unless, after considering the matters before it, it believes
that said circumstances existed or their existence was so
probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that they
did exist. To put it in other words, the accused will have to
rebut the presumption that such circumstances did not exist,
by placing material before the court sufficient to make it
con- sider the existence of the said circumstances so
probable that a prudent man would act upon them. The
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accused has to satisfy the standard of a “prudent man”. If
the material placed before the court. such as, oral and
documentary evidence, presumptions, admissions or even
the prosecution evidence, satisfies the test of “prudent
man”, the accused will have discharged his burden. The
evidence so placed may not be sufficient to’ discharge the
burden under
s. 105 of the Evidence Act, but it may raise a
reasonable doubt in the mind of a judge as regards one or
other of the necessary ingredients of the offence itself. It
may, for instance, raise a reasonable doubt in the mind of
the judge whether the accused had the requisite intention
laid down in
s. 299 of the Indian Penal Code. If the judge
has such reasonable doubt, he has to acquit the accused, for
in that event the prosecution will have failed to prove
conclusively the guilt of the accused. There is no conflict
between the general burden, which is always on the
prosecution and which never shifts, and the special burden
that rests on the accused to make out his defence of
insanity.

6. The textbooks placed before us and the decisions
cited at the Bar lead to the same conclusion. In Halsbury’s
Laws of England, 3rd edn., Vol. 10, at p. 288, it is stated
thus: “The onus of establishing insanity is on the accused.
The burden of proof upon him is no higher than which rests
upon a party to civil proceedings.”

Glanville Williams in his book ‘Criminal Law”, The
General Part, 2nd Edn., places the relevant aspect in the
correct perspective thus, at p. 516:

“As stated before, to find that the accused did not
know the nature and quality of his act is, in part, only
another way of finding that he was ignorant as to some fact
constituting an ingredient of the crime; and if the crime is
one requiring intention or recklessness he must, on the view
advanced in this book, be innocent of mens rea. Since the
persuasive burden of proof of mens rea is on the prose-
cution, on question of defence, or of disease of the mind,
arises, except in so far as the prisoner is called upon for his
own safety to neutralise the evidence of the prosecution. No
persuasive burden of proof rests on him, and if the jury are
uncertain whether the allegation of mens rea is made out
………… the benefit of the doubt must be given to the
prisoner, for, in the words of Lord Reading in another
context, “the Crown would then have failed to discharge the
burden imposed on it by our law of satisfying the jury
beyond reasonable doubt of the guilt of the prisoner.”

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This Court in K. M. Nanavati v. State of
Maharashtra(1) had to consider the question of burden of
proof in the context ofa defence based on the exception
embodied in
s. 80 of the Indian Penal Code. In that context
the law is summarized thus:

“The alleged conflict between the general burden
which lies on the prosecution and the special burden
imposed on the accused under
s. 105 of the Evidence Act is
more imaginary than real. Indeed, there is no conflict at all.
There may arise three different situations: (1) A statute may
throw the burden of proof of all or some of the ingredients
of an offence on the accused: (see
ss. 4 and 5 of the
Prevention of Corruption Act). (2) The special burden may
not touch the ingredients of the offence, but only the
protection given on the assumption of the proof of the said
ingredients: (see
ss. 77, 78, 79, 81 and 88 of the Indian
Penal Code). (3) It may relate to an exception, some of the
many circumstances required to attract the exception, if
proved, affecting the proof of all or some of the ingredients
of the offence: (see
s. 80 of the Indian Penal
Code)…………………… In the third case, though the burden
lies on the accused to bring his case within the exception
the facts proved may not discharge the said burden, but may
affect the proof of the ingredients of the offence.”

After giving an illustration, this Court proceeded to
state:

“That evidence may not be sufficient to prove all the
ingredients of
s. 80 of the Indian Penal Code, but may prove
that the shooting was by accident or inadvertence, i.e., it
was done without any intention or requisite state of mind,
which is the essence of the offence, within the meaning of
s.
300,
Indian Penal Code, or at any rate may throw a
reasonable doubt on the essential ingredients of the offence
of murder……………… In this view it might be said that the
general burden to prove the ingredients of the offence,
unless there is a specific statute to the contrary, is always on
the prosecution, but the burden to prove the circumstances
coming under the exceptions lies upon the accused.” (1)
[1962] Supp. 1 S.C.R. 567, 597, 598.

What is said of s. 80 of the Indian Penal Code will
equally apply to
s. 84 thereof. A Division Bench of the
Patna High Court in
Kamla Singh v. The State (1) invoked
the same principle when the plea of insanity was raised. A
Division Bench of the Nagpur High Court in
Ramhitram v.
State(1) has struck a different note inasmuch as it held that
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the benefit of doubt which the law gives on the presumption
of innocence is available only where the prosecution had
not been able to connect the accused with the occurrence
and that it had nothing to do with the mental state of the
accused. With great respect, we cannot agree with this
view. If this view were correct, the court would be helpless
and would be legally bound to convict an accused even
though there was genuine and reasonable doubt in its mind
that the accused had not the requisite intention when he did
the act for which he was charged. This view is also
inconsistent with that expressed in Nanavati’s case(3). A
Scottish case, H.M. Advocate v. Fraser(4), noticed in
Glanville Williams’ “Criminal Law”, The General Part, 2nd
Edn., at p. 517, pinpoints the distinction between these two
categories of burden of proof. There, a man killed his baby
while he was asleep; he was dreaming that he was
struggling with a wild beast. The learned author elaborates
the problem thus:

“When the Crown proved that the accused had killed
his baby what may be called an evidential presumption or
presumption of fact arose that the killing was murder. Had
no evidence been adduced for the defence the jury could
have convicted of murder, and their verdict would have
been upheld on appeal. The burden of adducing evidence of
the delusion therefore lay on the accused. Suppose that,
when all the evidence was in, the jury did not know what to
make of the matter. They might suspect the accused to be
inventing a tale to cover his guilt, and yet not be reasonably
certain about it. In that event the accused would be entitled
to an acquittal. The prosecution must prove beyond
reasonable doubt not only the actus reus but the mens rea. ”

7. ……..

8. ……..

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
s. 84 of the Indian Penal Code can
only be established from the circumstances which preceded,
attended and followed the crime.

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13. In Hari Singh Gond v. State of M.P. reported in

(2008) 16 SCC 109, It has been held by the Apex Court which is

as follows:-

“10. Section 84 lays down the legal test of
responsibility in cases of alleged unsoundness of mind.
There, is no definition of “unsoundness of mind” in the
IPC.
Courts have, however, mainly treated this expression as
equivalent to insanity. But the term “insanity” itself has no
precise definition. It is a term used to describe varying
degrees of mental disorder. So, every person, who is
mentally diseased, is not ipso facto exempted from criminal
responsibility. A distinction is to be made between legal
insanity and medical insanity. A Court is concerned with
legal insanity, and not with medical insanity. The burden of
proof rests on an accused to prove his insanity, which arises
by virtue of
Section 105 of the Indian Evidence Act, 1972
(in short the `
Evidence Act’) and is not so onerous as that
upon the prosecution to prove that the accused committed
the act with which he is charged. The burden on the accused
is no higher than that resting upon a plaintiff or a defendant
in a civil proceeding. (
See Dahyabhai v. State of Gujarat
AIR 1964 SC 1563). In dealing with cases involving a
defence of insanity, distinction must be made between
cases, in which insanity is more or less proved and the
question is only as to the degree of irresponsibility, and
cases, in which insanity is sought to be proved in respect of
a person, who for all intents and purposes, appears sane. In
all cases, where previous insanity is proved or admitted,
certain considerations have to be borne in mind. Mayne
summarises them as follows:

“Whether there was deliberation and preparation for
the act; whether it was done in a manner which showed a
desire to concealment ; whether after the crime, the
offender showed consciousness of guilt and made efforts to
avoid detections whether, after his arrest, he offered false
excuses and made false statements. All facts of this sort are
material as bearing on the test, which Bramwall, submitted
to a jury in such a case : `Would the prisoner have
committed the act if there had been a policeman at his
elbow ? It is to be remembered that these tests are good for
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cases in which previous insanity is more or less established.

These tests are not always reliable where there is,
what Mayne calls, “inferential insanity”.

8. Under Section 84 IPC, a person is exonerated from
liability for doing an act on the ground of unsoundness of
mind if he, at the time of doing the act, is either incapable
of knowing (a) the nature of the act, or (b) that he is doing
what is either wrong or contrary to law. The accused is
protected not only when, on account of insanity, he was
incapable of knowing the nature of the act, but also when he
did not know either that the act was wrong or that it was
contrary to law, although he might know the nature of the
act itself. He is, however, not protected if he knew that what
he was doing was wrong, even if he did not know that it
was contrary to law, and also if he knew that what he was
doing was contrary to law even though he did not know that
it was wrong. The onus of proving unsoundness of mind is
on the accused. But where during the investigation previous
history of insanity is revealed, it is the duty of an honest
investigator to subject the accused to a medical examination
and place that evidence before the Court and if this is not
done, it creates a serious infirmity in the prosecution case
and the benefit of doubt has to be given to the accused. The
onus, however, has to be discharged by producing evidence
as to the conduct of the accused shortly prior to the offence
and his conduct at the time or immediately afterwards, also
by evidence of his mental condition and other relevant
factors. Every person is presumed to know the natural
consequences of his act. Similarly every person is also
presumed to know the law. The prosecution has not to
establish these facts.

9. There are four kinds of persons who may be said to
be non compos mentis (not of sound mind), i.e., (1) an idiot;
(2) one made non compos by illness (3) a lunatic or a mad
man and (4.) one who is drunk. An idiot is one who is of
non-sane memory from his birth, by a perpetual infirmity,
without lucid intervals; and those are said to be idiots who
cannot count twenty, or tell the days of the week, or who do
not know their fathers or mothers, or the like, (See
Archbold’s Criminal Pleadings, Evidence and Practice, 35th
Edn. pp.31-32; Russell on Crimes and Misdemeanors, 12th
Edn. Vol., p.105; 1 Hala’s Pleas of the Grown 34). A person
made non compos mentis by illness is excused in criminal
cases from such acts as are- committed while under the
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influence of his disorder, (See 1 Hale PC 30). A lunatic is
one who is afflicted by mental disorder only at certain
periods and vicissitudes, having intervals of reason, (See
Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is
permanent. Lunacy and madness are spoken of as acquired
insanity, and idiocy as natural insanity.

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 person cuts off the head of a sleeping man
because it would be 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:

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„… 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 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.

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14. In Siddhapal Kamala Yadav v. State of

Maharashtra reported in AIR 2009 SC 97, it has been held:-

8. Under Section 84 IPC, a person is
exonerated from liability for doing an act on the ground
of unsoundness of mind if he, at the time of doing the
act, is either incapable of knowing (a) the nature of the
act, or (b) that he is doing what is either wrong or
contrary to law. The accused is protected not only
when, on account of insanity, he was incapable of
knowing the nature of the act, but also when he did not
know either that the act was wrong or that it was
contrary to law, although he might know the nature of
the act itself. He is, however, not protected if he knew
that what he was doing was wrong, even if he did not
know that it was contrary to law, and also if he knew
that what he was doing was contrary to law even though
he did not know that it was wrong. The onus of proving
unsoundness of mind is on the accused. But where
during the investigation previous history of insanity is
revealed, it is the duty of an honest investigator to
subject the accused to a medical examination and place
that evidence before the Court and if this is not done, it
creates a serious infirmity in the prosecution case and
the benefit of doubt has to be given to the accused. The
onus, however, has to be discharged by producing
evidence as to the conduct of the accused shortly prior
to the offence and his conduct at the time or
immediately afterwards, also by evidence of his mental
condition and other relevant factors. Every person is
presumed to know the natural consequences of his act.
Similarly, every person is also presumed to know the
law. The prosecution has not to establish these facts.

15. In Vijayee Singh Ors v. State U.P. reported in

AIR 1990 SC 1459, it has been held as follows:-

33. The general burden of establishing the guilt of
accused is always on the prosecution and it never shifts.
Even in respect of the cases covered by
Section 105 the
prosecution is not absolved of its duty of discharging the
17

burden. The accused may raise a plea of exception either by
pleading the same specifically or by relying on the
probabilities and circumstances obtaining in the case. He
may adduce the evidence in support of his plea directly or
rely on the prosecution case itself or, as stated above, he can
indi- rectly introduce such circumstances by way of cross-
examina- tion and also rely on the probabilities and the
other cir- cumstances. Then the initial presumption against
the accused regarding the non-existence of the
circumstances in favour of his plea gets displaced and on an
examination of the material if a reasonable doubt arises the
benefit of it should go to the accused. The accused can also
discharge the burden under Sec. 105 by preponderance of
probabilities in favour of his plea. In case of general
exceptions, special exceptions, provisos contained in
the
Penal Code or in any law defining the offence, the Court,
after due consideration of the evidence in the light of the
above principles, if satisfied, would state, in the first
instance, as to which exception the accused is entitled to,
then see whether he would be entitled for a complete
acquittal of the offence charged or would be liable for a
lesser offence and convict him accordingly.

16. In Uttam Nandram Somwanshi v. State of

Maharashtra reported in 2017 Cr.L.J. 1103, it has been held by

the Apex Court as:-

7. On the other hand, learned Counsel
appearing on behalf of the Respondent-State of
Maharashtra sought to justify the correctness of the
findings of the Division Bench of the High Court and
submits that the first appellate court in its domain has
exercised its appellate power and re-appreciated the
evidence and eventually arrived at the conclusion on the
basis of the material evidence placed on record,
including the defence witness, as also taking into
consideration the subsequent conduct of the accused at
the time of producing him, after the arrest, before the
learned Magistrate, which was the first opportunity for
him to state that he has been suffering from
schizophrenia, and at the time of hearing of the appeal,
he has been sent to the Civil Surgeon. After considering
the opinion of the Civil Surgeon and the evidence
18

placed on record, the appellate court has recorded a
finding that it is evident, that it was realised on
20.08.2004 that the accused/Appellant herein was
talking irrelevantly that was followed by an order of
reference of the Appellant to the Civil Surgeon.

Whereafter, the accused was certified to be fit to face
the trial in March, 2005. Thus, relapse to schizophrenic
attack was in August, 2004, which is one year after the
incident on 30.07.2003 and, thereafter, at the time of
arrest, he has not complained before the learned
Magistrate, therefore, the Division Bench of the High
Court presumed that there were no signs of
unsoundness of mind of the accused/Appellant,
otherwise there could have been a reference of the
accused/Appellant by the learned Magistrate to the
Competent Medical expert Doctor at the relevant time.
Further, adverting to the relevant fact, namely, on
31.07.2003 at 3.00 p.m., when he was produced before
the learned Judicial Magistrate, First Class, Srirampur,
the learned Magistrate recorded that the
accused/Appellant has no complaint of ill-treatment at
the hands of Police. On the day next, after the incident,
there were no signs of unsoundness of mind and with
reference to the remand report, because it is not
exhibited document, presumption, as to the action as
recorded in the remand report referred to by the learned
Magistrate, will have to be drawn because the learned
Magistrate being an official, he has been presumed to
have done official act properly while remanding to the
judicial custody at the time when the Appellant was
produced before him. Therefore, the Division Bench of
the High Court has arrived at the right conclusion that
there is no evidence adduced by the accused/Appellant
on record to show that he was suffering from mental
illness on the date of the occurrence to extend the
benefit of
Section 84 of the Indian Penal Code.

8. The Division Bench of the High Court
with reference to the conduct of the accused seen before
the incident, has arrived at the conclusion that he was
working to a plan on the day he was produced before
the learned Magistrate on 31.07.2003, there were no
signs of unsoundness of mind. The defence has not
been successful in proving that “at the crucial point of
time” or “at the time of doing the act” by unsoundness
of mind, the accused/Appellant was incapable of
knowing the nature of his act. Regarding evidence of
19

unsoundness of mind brought on record is not regarding
unsoundness of mind soon before or after the incident.
On the contrary, soon before the incident, the
accused/Appellant appears to have conscientiously
acted upon the plan and, therefore, the Division Bench
of the High Court was rightly not agreed with the
finding of fact recorded by the trial court on the charge
holding him not guilty. It has rightly set aside the
finding of the trial court holding that the case of the
accused does not fall within the purview of general
exceptions available Under
Section 84 of the Indian
Penal Code. Further, we have carefully examined the
reasons recorded by the trial court Judge that
immediately after the incident the Appellant has
performed Pooja and also prepared tea that would factor
in to hold that the conclusion arrived at by the Division
Bench of the High Court is based on proper
appreciation of the evidence placed on record. More so,
in absence of defence for unsoundness of mind the
accused/Appellant on the date of the incident, in our
considered opinion, the Division Bench of the High
Court did not err in setting aside the acquittal judgment
passed by the trial court.

17. Now coming to analyze the facts of the case

inconsonance with the principle so adorned by the Apex Court as

referred above, it is apparent from the lower court record that

appellant was arrested by the police on 10.07.2014 itself which is

apparent from the written report and was produced on 11.07.2014.

At the time of production neither the court had perceived any kind

of abnormality nor such plea was raised on behalf of appellant. On

07.08.2014, there was an application by the appellant from jail

whereupon, the court had directed the jail authorities to get him

properly examined and report. In pursuance thereof, a report was
20

submitted on 15.08.2014 disclosing the fact that appellant was

suffering from headache and for that, he was taken to PMCH

where he was minutely observed. Nothing abnormality has been

perceived. So, the appellant happens to be normal and stable.

While appellant moved prayer for bail under B.P. No. 1903/2014,

the learned Additional Sessions Judge had directed, while

rejecting the prayer for bail, to get the appellant properly

examined and in case, the matter is reported regarding his insanity,

then in that event, the learned lower court will pass appropriate

order in accordance with law.

18. In the aforesaid background, vide order dated

19.09.2014, again jail authority was directed to get the appellant

properly examined and thereafter, detailed report dated 27.10.2014

happens to be on the record which again confirmed regarding

mental condition of the appellant to be normal and stable. While

the prayer for bail on behalf of appellant was being considered at

the appellate stage, on a prayer made by the appellant, a report

was called for from the learned lower court who had referred the

report of the doctor dated 10.08.2017 divulging the fact that the

appellant to be Schizophrenic. However, the aforesaid finding

could not come in rescue of the appellant in the background of the

fact that the earlier two report did not justify the same as well as it

did not substantiate that appellant was suffering therefrom even at
21

the time of occurrence.

19. So far evidence on that very score is concerned, it

is apparent that appellant had virtually, lost the game in the

background of the fact that the brother of the appellant who

happens to be the first informant examined as PW-3 became

hostile and during course thereof, he even ignored his earlier

version, was not at all cross-examined more particularly, relating

to insanity of the appellant during course of commission of the

occurrence. Apart from PW-3, none of the family member came in

defence and in likewise manner, produced and exhibited relevant

medical report, prescription of the doctor, examination of the

doctor over mental condition of the appellant. In the aforesaid

background, the conduct of the appellant itself suggests that he

had not been able to discharge the onus as required under Section

105 of the Evidence Act to the extent of preponderance and in

likewise manner, no evidence is available on record whereupon

court could form an opinion in favour of the appellant. Moreover,

during trial as well as during course of statement recorded under

Section 313 CrPC nothing abnormality has been found by the

court. That being so, the appellant is not at all found suffering

from mental disorder much less at the time of occurrence, hence

not entitled to get any kind of protection under Section 84 of the

IPC.

22

20. Now coming to factual aspect, it is evident that

PW-1, the driver of the auto-rickshaw had supported the case but,

he had not claimed to have seen the assailant who had fired. He

was not at all declared hostile by the prosecution on that very

score. PW-2 completely disowned and was declared hostile. PW-

3, informant also disowned and was declared hostile. PW-6 is

another injured, brother-in-law (Sala of PW-1) who had deposed

that on the alleged date and time of occurrence he was along with

his brother-in-law in the auto-rickshaw which was hired by

Brahamdev to the house of his brother. They were inside the

vehicle. Brahamdev had gone inside the house and then returned

back along with his brother. Both sat. Brahamdev directed to

proceed while his brother was directing to stop. Over which, his

brother-in-law had said to finalize whether to proceed or to stop.

His brother-in-law stopped auto-rickshaw. Then thereafter,

Dharamdev came out from the vehicle followed by Brahamdev

and then they both talked and during course thereof, Dharamdev

took out pistol and fired indiscriminately causing injury to his

brother-in-law as well as he himself. He sustained injury over his

chest. He became unconscious. Identified the accused in the dock.

In para-3 of his cross-examination, he had stated that he is

unaware of the fact who happens to be the informant. During

course of occurrence, he was inside the auto. He had further
23

stated that he had no grudge or animosity with Brahamdev. At the

time of occurrence, there was visibility. In para-5 ,he had stated

that he is unable to disclose what was the intention of Dharamdev.

In para-6 and 7, he had stated that he is unable to say whether

Dharamdev was insane and his treatment was going on at Kake,

Ranchi. In para-9, he had stated that Dharamdev had fired from

front side. He was not knowing since before Dharamdev to be

brother of Brahamdev. The same was disclosed by Brahamdev.

21. PW-8 is the Dr. Kaushal Kishore Keshari who had

examined the injured Vipul Kumar (PW 6) and found following

injuries:-

Right arm distal lateral side entry wound, exit wound,
medial side of arm. Entry wound on epigastrium region
and left side below nipple.

22. During cross-examination, he had stated that he is

unable to say what kind of weapon was used for causing the

injury. Then had submitted that this injury report is not final injury

report.

23. PW-9 is Dr. Sumit Sharan who had examined the

victim, Rajesh Kumar (PW 1) and found the following injuries:-

1. Entry wound at interior aspect of neck
(mid of neck) 1x1x1/2 cm. Blackening
around wound.

2. Entry wound at supra clavicular region
right m. 1×1/2×1/2 c.m.

3. Entry wound at right deltoid region lateral
aspect m. 1x1x1 c.m. Bleeding present.

24

24. During cross-examination he had stated that he had

examined the victim at first instance. He is unable to say whether

the injuries were simple, grievous in nature on the basis of injury

report. He had also stated that he is unable to say what kind of

weapon was used for causing the injury. Then had submitted that

this injury report is not final injury report. However, the nature of

injury suggest to be caused by fire arm as is evident from Modi

Medical Jurisprudence, on account of presence of wound of entry

as well as exit, having blackening around the injury.

25. PW-4 is the Police Inspector who had deposed that

the appellant was deputed as Bodyguard of S.P. and on account

thereof, was allotted with revolver and cartridges. He had further

stated that he was mentally and physically fit. Subsequently, they

came to know that there was family feud prevailing. They came to

know that the appellant had fired causing injury to different

persons. The Investigating Officer had come to him and taken his

statement. During cross-examination at para-4, had stated that he

is not an eyewitness to the occurrence.

26. PW-5 is Hawaldar Md. Jiglai who had reiterated

the version of PW-4. In para-6, he had stated that the occurrence

did not take place in his presence. PW-7 is the Investigating

Officer who had deposed that on the alleged date and time of
25

occurrence, he was posted at Shashtri Nagar PS. On being

entrusted with the investigation, he took up. During course

thereof, he had examined the witnesses and had submitted the

charge-sheet. He had further stated that after obtaining order from

the court, he had transmitted the revolver for FSL examination.

Obtained injury report. Also examined the officials wherefrom

revolver was issued to the accused. Obtained the supervision note

and then submitted charge-sheet. Identified the accused. During

cross-examination, he had admitted that the accused happens to be

a Police Constable. He had not taken statement of the accused. He

had not arrested the accused. He was entrusted with the

investigation on 10.07.2014. He had not got the accused examined

with regard to his mental condition. He had recorded statement of

family members of the appellant.

27. PW-10 is another Police Official who had deposed

that the appellant was deputed as a Bodyguard of S.P. Special

Branch whereupon, revolver and 30 rounds of .38 Bore cartridges

were issued to him on 09.07.2014. He had identified the accused

in dock. During cross-examination nothing substantial has been

stated.

28. From the lower court record, it is apparent that

some sort of laches have been at the end of the prosecution in the

background of the fact that in spite of examination of the
26

Investigating Officer the original seizure list which happens to be

available on the record has not been exhibited and in likewise

manner during course of examination of the Investigating Officer,

objective finding relating to place of occurrence had not been

brought on record. In likewise manner, the arm and ammunitions

also have not been produced although it happens to be official one

allotted to the appellant as disclosed by PW-10, the original FSL

report, though photo copy is available on the record, has not been

traced out to get the same as an exhibit.

29. Furthermore, the trend of the evidence also

suggests that save and except PW-6, one of the injured, PWs- 2, 3

have gone volte face.PW-1 substantiated the occurrence but

declined to identify the appellant as an author. So far the evidence

of doctor is concerned, they both, though deposed, but neither

been able to place the supplementary injury report nor the

prosecution had cared to procure and place the same. But, from the

evidence of both the doctors, it is apparent that they have found

injuries suggesting entry and exit which could be only when there

happens to be fire arm injury having blackening around the same.

It is also apparent from the record that the learned lower court was

silent spectator during course of conduction of trial. When the

evidence of doctor is taken together with the evidence of one of

the injured, PW-6, though PW-1 had also corroborated the
27

same including that of sustaining of injury to himself as well as

PW-6, simply giving a life to the appellant failed to identify the

appellant to be assailant. From the cross-examination of PW-6, it

is evident that neither his presence has been challenged nor any

sort of event has been flashed to suggest that out of grudge,

animosity he had identified the appellant as an assailant or there

happens to be probability of mis-identification.

30. In Mukesh V. State of NCT of Delhi with Vijay

Shama v. State of NCT of Delhi reported in 2017 CrLJ 4365, it

has been held by the Apex Court as follows:-

“79. The injuries found on the person of PW-1
and the fact that PW-1 was injured in the same occurrence
lends assurance to his testimony that he was present at the
time of the occurrence along with the prosecutrix. The
evidence of an injured witness is entitled to a greater weight
and the testimony of such a witness is considered to be
beyond reproach and reliable. Firm, cogent and convincing
ground is required to discard the evidence of an injured
witness. It is to be kept in mind that the evidentiary value of
an injured witness carries great weight.
In Mano Dutt and
another v. State of Uttar Pradesh[(2012) 4 SCC 79], it was
held as under: “31. We may merely refer to
Abdul Sayeed
v. State of M.P.[ (2010) 10 SCC 259] where this Court held
as under:

“28. The question of the weight to be attached
to the evidence of a witness that was himself injured in the
course of the occurrence has been extensively discussed by
this Court. Where a witness to the occurrence has himself
been injured in the incident, the testimony of such a witness
is generally considered to be very reliable, as he is a witness
that comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone.

„Convincing evidence is required to discredit an injured
witness.‟ [Vide Ramlagan Singh v. State of Bihar[(1973) 3
28

SCC 881], Malkhan Singh v. State of U.P.[ (1975) 3 SCC
311],
Machhi Singh v. State of Punjab[(1983) 3 SCC 470],
Appabhai v. State of Gujarat [1988 Supp SCC 241],
Bonkya v. State of Maharashtra[(1995) 6 SCC 447], Bhag
Singh v. State of Punjab[(1997) 7 SCC 712],
Mohar v. State
of U.P.[ (2002) 7 SCC 606],
Dinesh Kumar v. State of
Rajasthan[(2008) 8 SCC 270],
Vishnu v. State of
Rajasthan[(2009) 10 SCC 477],
Annareddy Sambasiva
Reddy v. State of A.P.[ (2009) 12 SCC 546] and
Balraje v.
State of Maharashtra[(2010) 6 SCC 673].

29. While deciding this issue, a similar view
was taken in
Jarnail Singh v. State of Punjab[(2009) 9 SCC
719] where this Court reiterated the special evidentiary
status accorded to the testimony of an injured accused and
relying on its earlier judgments held as under:

„28. Darshan Singh (PW 4) was an injured
witness. He had been examined by the doctor. His
testimony could not be brushed aside lightly. He had given
full details of the incident as he was present at the time
when the assailants reached the tubewell.
In Shivalingappa
Kallayanappa v. State of Karnataka[1994 Supp (3) SCC
235] this Court has held that the deposition of the injured
witness should be relied upon unless there are strong
grounds for rejection of his evidence on the basis of major
contradictions and discrepancies, for the reason that his
presence on the scene stands established in case it is proved
that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand[(2004) 7
SCC 629] a similar view has been reiterated observing that
the testimony of a stamped witness has its own relevance
and efficacy. The fact that the witness sustained injuries at
the time and place of occurrence, lends support to his
testimony that he was present during the occurrence. In case
the injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide
Krishan v. State of
Haryana[(2009) 12 SCC 459]. Thus, we are of the
considered opinion that evidence of Darshan Singh (PW 4)
has rightly been relied upon by the courts below.‟

30. The law on the point can be summarised to
the effect that the testimony of the injured witness is
accorded a special status in law. This is as a consequence of
the fact that the injury to the witness is an inbuilt guarantee
of his presence at the scene of the crime and because the
29

witness will not want to let his actual assailant go
unpunished merely to falsely implicate a third party for the
commission of the offence. Thus, the deposition of the
injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of
major contradictions and discrepancies therein.” To the
similar effect is the judgment of this Court in Balraje
(supra).”

31. Furthermore, Section 134 of the Evidence Act did

not require number to be relevant for proving facts in issue.

Therefore, evidence of single witness if reliable, could form basis

for conviction.

32. After going through minutely the evidence on

record, more particularly, injured PW-6 in consonance with the

evidence of the doctor, the case of the prosecution is found

proved, whereupon, the judgment of conviction and sentence

recorded by the learned lower court is affirmed.

33. Consequent thereupon, the instant appeal sans

merit and is, accordingly dismissed.

34. Appellant is under custody which he will remain till

saturation of the sentence.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE 30.10.2017
Uploading Date 13.11.2017
Transmission 13.11.2017
Date

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