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Wx vs State on 23 March, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A.999/2016
Reserved on: 12th March, 2018
Decided on: 23rd March, 2018

WX …..Appellant
Through: Mr. Ajay Verma with Ms Sudha Reddy
and Ms Katyayni, Advocates.

versus

STATE ….Respondent
Through: Ms Radhika Kolluru, APP for the State

CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT

Dr. S. Muralidhar, J.:

Introduction

1. This appeal is directed against the judgment dated 20th May, 2016 passed
by the learned Additional Sessions Judge (ASJ), Fast Track Court, Shahdara
District in Sessions Case No.2/2011 arising out of an FIR No.311/2010
registered at Police Station („PS‟) Madhu Vihar convicting the Appellant for
the offence punishable under Section 302 of the Indian Penal Code („IPC‟).
The appeal is also directed against the impugned order on sentence dated
28th May, 2016 whereby the Appellant was sentenced to imprisonment for
life with a fine of Rs.25,000/- and in default of payment of fine to undergo

Crl.A. 999 /2016 Page 1 of 16
simple imprisonment for three months.

2. The Appellant was charged with having murdered her eight year old
nephew („the deceased‟) between 3.30 and 5 pm on 12th September, 2010 on
the roof of an apartment complex in IP Extension, Delhi within the
jurisdiction of PS Madhu Vihar.

3. It must be noted at the outset that the trial court has, in the impugned
judgment, rejected the Appellant‟s defence under Section 84 IPC, viz., that
at the time that the crime was committed, she was incapable of knowing the
nature of the act. However, when the present appeal was heard by this Court,
the Appellant filed Crl. MA No.16490/2016 under Section 391 read with
Section 482 of the Code of Criminal Procedure („Cr PC‟) for leading further
evidence. The Appellant in this application placed reliance on the record of
HMA No. 422/2011 which was a petition filed in the Family Court by her
husband (DW-3) seeking dissolution of her marriage with him. In that
divorce petition, the records of the treatment received by the Appellant for
her mental condition were filed. The Appellant also sought to rely upon the
pleadings in GP No.13/2011 which was a guardianship petition filed by her
seeking the custody of her two children. This was dismissed on 7th August,
2010 on account of her mental condition. Before this Court, the State filed a
status report confirming that the Appellant had been receiving treatment in
various hospitals for her mental illness. In the trial court in the present case,
one of her treating doctors was examined as PW-22 to prove the treatment
received by the Appellant.

4. By an order dated 29th November 2016 this Court allowed the Appellant‟s

Crl.A. 999 /2016 Page 2 of 16
application Crl M A No. 16490 of 2016 and directed as follows:

“7 Be that as it may, it cannot be denied that the mental capacity and
condition of the appellant on the date and time of commission of the
offence is an extremely relevant factor. The complete evidence in
record thereto could not be placed by the appellant before the trial
court. In view of the above, we are inclined to favourably consider
this application. It is, therefore, directed as follows:

(i) The appellant is permitted to lead the evidence of the treatment
received by her and prescriptions as well as the evidence of the
matrimonial case filed against her by her husband in HMA
No.422/2011.

(ii) The appellant shall place certified copies of the judicial records
which are sought to be proved or produced in GP No. 13/2011 and
HMA No. 422/2011 before the trial court within eight weeks from
today. List of witnesses shall also be filed before the trial court within
the same period.

(iii) The appellant shall be produced before the trial court for fixing a
date for recording of evidence and appropriate directions’ for
summoning witnesses and records.

(iv) The trial court shall record the evidence of the appellant in order
to enable her to prove and establish the aforesaid facts.

(v) The evidence shall be completed within a period of two months
from the date of receipt of the aforesaid documents to be filed by the
appellant.

(vi) The record of the trial court shall be returned to the trial court to
enable the above proceedings. Thereafter, the record of the case along
with the additional evidence shall be returned to this court for
consideration along with the appeal.”

5. Pursuant to the above order, additional evidence was led and the transcript

Crl.A. 999 /2016 Page 3 of 16
of such additional evidence has been sent to this Court. This time around,
the husband of the Appellant was examined as DW-3. Further, the three
doctors who had treated the Appellant had been examined as DWs 4, 5 and

6.

6. The record of treatment, which has been exhibited in the trial Court, also
now forms part of the trial Court record.

Background facts

7. The Appellant was married to DW-3 on 12th September, 2002. Two sons
have been born to them – one in June, 2003 and the other in May, 2006. It
was an arranged marriage. It has now emerged in the evidence of the
psychiatrist at the Ganga Ram Hospital (GRH) in Delhi (DW-4) that there
are records from 11th January, 2010 onwards to show that the Appellant was
receiving treatment for depression. DW-4 himself examined the patient on
15th March, 2010.

8. In the GRH records, for the date 11th February 2010, there is a noting that
there was a suicidal attempt by the Appellant “one month ago”. Further, it
was noted “suicidal thoughts have increased and wants to kill her children.”
Another doctor who examined the Appellant on 14 th January, 2010 (DW-5)
clearly stated that she came with the alleged history of depressive psychosis.
He proved the prescriptions given by him (Ex.DW3/X2) prescribing her
tablets for the said symptoms.

9. Then there is the discharge summary written by another doctor at the
GRH [proved by Appellant‟s husband (DW-3), who brought to the Court the

Crl.A. 999 /2016 Page 4 of 16
originals thereof] where the diagnosis noted was “acute depression,
hypothyroidism urinary tract infection”. The date of admission was given as
31st March, 2010 and the date of discharge as 4 th April, 2010. The case
summary was that she was admitted as an emergency case “as she attempted
suicide twice”. The investigations revealed “gross hypothyroidism and
urinary tract infection”. The mental examination revealed “acute depression,
psychomotor retardation and suicidal ideas.” She was treated with anti-
depression medication. She was discharged on request as she did not want to
stay in the hospital. Her condition at the time of discharge was stated to be
“improved”.

10. It appears that Appellant‟s husband (DW-3) gave two complaints against
her to the police on 22nd May, 2010 (Ex.DW3/X4) and 5th June, 2010
(Ex.DW3/X5). In this, he referred in detail to the instances of the troubled
marriage and to a relatively recent instance of 8th May, 2010 where he and
his parents and family members were threatened. In these complaints, he
also referred to the fact that the Appellant was being treated for mental
depression.

11. DW-3 also produced before the Court the complete record of the
treatment received by the Appellant at the Institute of Human Behaviour and
Allied Sciences („IHBAS‟) in Delhi. In terms of an order dated 23rd
September, 2010 passed by the Family Court, she was admitted to IHBAS
on 25th September, 2010. The communication addressed to the learned ASJ,
Fast Track Court, East on 17th March, 2011 by IHBAS states that she was
diagnosed to be suffering from “severe depressive episode without psychotic

Crl.A. 999 /2016 Page 5 of 16
symptoms with hypothyroidism.” She had been put on treatment and had
shown improvement in her clinical condition. It was stated that the patient
was planned for discharge in the next week. It is not necessary to refer in
detail to the exhaustive, nearly 400 page treatment record of the Appellant at
IHBAS. Suffice it to say that she was an inpatient at IHBAS for almost one
year. It has come in the evidence of Director, IHBAS, who was examined as
DW-6 that the Appellant remained admitted there till 25 th August, 2011.

12. Since soon after the incident in the present case, the Appellant was
admitted to IHBAS, the trial in the present case was put on hold. It was only
on 9th March, 2011 that the Medical Board at IHBAS opined that the
Appellant was fit to stand trial. In his cross-examination by the APP, DW-6
stated that on the date she was admitted to IHBAS, the Appellant was in a
depressed mood and had negative thoughts.

13. It is, therefore, plain from all of the above evidence which has now been
brought on record pursuant to the orders passed by the Court that prior to the
occurrence on 12th September 2010, the Appellant was already receiving
treatment for her depression. It is in this background that the facts that
unfolded that led to the present case have to be discussed.

14. In view of the sensitive nature of this case, and the context, the Court has
anonymised the Appellant with the letters WX and has avoided the reference
to names of even the witnesses.

The version of the prosecution witnesses

15. The Appellant‟s brother (PW-5) was examined in the present trial on 16th

Crl.A. 999 /2016 Page 6 of 16
August, 2011. It was his son who was murdered by the Appellant. He stated
that for the past two years, the Appellant was being harassed by her in-laws.
For the last nine months prior to the death of his son, the Appellant was
residing with PW-5. He clearly stated, “she was undergoing depression”. He
mentioned that his cousin brother-in-law had gone to meet the Appellant at
IHBAS15/20 days after the death of the son of PW5.

16. It has come in the evidence of PW-5 that the Appellant‟s two sons were
not residing with her but were with her husband. A lot of efforts were made
by the Appellant‟s brother (PW-5) to get the Appellant to meet her children
at her in-laws house, but they did not allow the Appellant to meet her sons.
He stated, “It is correct that because of this reason WX had lost her mental
balance and she was under depression”. He confirmed that twice, the
Appellant had left her matrimonial house on account of harassment by her
in-laws. On 13th April 2010, the Appellant left her matrimonial house and
went to Jaipur. PW-5 further stated, “It is correct that she was so mentally
depressed that even she used to be not aware where she had gone.”

17. PW-5 admitted that the Appellant used to love the nephew whom she
murdered “very much”. He also confirmed that in July and August, 2010,
the Appellant had received treatment from a psychiatrist at both the GRH
and the Max Balaji Hospital.

18. On 12th September 2010, it was the marriage anniversary of the
Appellant. PW-5 was in his office. At the time he had left the home for
office at 10 am, the Appellant was sleeping. At about 4.45 pm on 12 th
September 2010, PW-5 received a telephonic call from his wife (who was

Crl.A. 999 /2016 Page 7 of 16
examined as PW-10) stating that the Appellant and his son (deceased) were
not present in the house.

19. The wife of PW-5, examined as PW-10, has also stated in her cross-
examination that it was correct that the Appellant “was affectionate to the
deceased and used to help him in his studies also.” She also confirmed that
her behaviour was “normal with my husband and me”.

20. It is through this witness (PW-10) that it has emerged that at 3.30 pm on
12th September, 2010 it was raining and the Appellant asked PW-10 whether
she could take the deceased to the terrace on the 7th floor for a walk. PW-10
initially asked her to ask PW-5 or the Appellants elder brother and also not
to go alone. When the Appellant asked again to go with the deceased, while
granting such permission, PW-10 asked her to return early. When neither
returned till 5 pm, PW-10 contacted her jethani (sister-in-law), who resided
in a different flat in the same building, on the intercom and informed her that
the Appellant had taken the deceased to the terrace and had not returned.
Thereafter, PW-10, her jethani and her jethani’s son Karan (PW-1) started
searching for the Appellant and the deceased but could not find them.

21. The son of the Appellant‟s jethani was examined as PW-1. He was
studying in the 12th class. PW-1 stated that he, his mother and PW-10
searched for the deceased at the park, swings and other places but could not
find him anywhere. The police reached there around 5 pm whilst the search
continued. He stated that when they reached the terrace of the first block
where PW-10 was staying, they found the dead body of the deceased. The
police accompanied by PW-1 then rushed him to the Max Hospital at

Crl.A. 999 /2016 Page 8 of 16
Patparganj.

22. As regards what happened at PS Madhu Vihar, the deposition of the
Investigating Officer („IO‟) (PW-21) reveals that the duty officer there
received information under DD No.24A (Ex.PW7/A) that the Appellant had
appeared at PS Krishna Nagar and told the police there that she had
committed the murder of the deceased. Head Constable („HC‟) (PW-4) who
was the duty officer at PS Krishna Nagar confirmed that the Appellant had
come to the PS at 4.45 pm. Initially, she did not say anything, but when lady
constable (PW-18) was called, the Appellant confessed to her about having
killed her nephew by strangulation on the roof of the apartment at
Patparganj. Since the apartment complex on the roof of which the murder
took place is within the jurisdiction of PS Madhu Vihar, the Station House
Officer („SHO‟) of PS Krishna Nagar contacted his counterpart at PS Madhu
Vihar and upon receiving a telephonic confirmation that the information was
correct, the Appellant was sent with PWs 4 and 18 at 6.55 pm to PS Madhu
Vihar.

23. This is, therefore, a case where the Appellant has herself walked in to the
PS and has not denied the occurrence.

Impugned judgment of the trial Court

24. Before the trial Court, two defence witnesses were examined i.e. DW-1
who brought the record of the Appellant at IHBAS and Ms. Kiran DW-2,
Assistant Superintendent, Tihar Jail who brought the latest medical report of
the treatment received by the Appellant at the Central Jail No.6.

Crl.A. 999 /2016 Page 9 of 16

25. The trial Court noted in paragraph 19 of the impugned judgment that
although the defence counsel for the Appellant in the trial Court “did
mention about the mental illness of the accused at the relevant time, but
during oral arguments, it was orally stated that he is not pressing that
argument.” It is not understood how the counsel for the Appellant in the trial
Court did not press that argument. It requires to be noted that he was a legal
aid counsel.

26. Yet the trial Court examined and rejected the argument holding that
“merely because there is no motive for the accused to commit the crime
cannot be a reason to invoke Section 84 of IPC.” The trial Court concluded
that since the Appellant had insisted that PW-10 allow her to take the
deceased to the terrace which was a secluded place and which was obviously
done to hide the crime, she knew the consequence of her act and “she cannot
claim that she was incapable of understanding as to what she was doing.” It
was also stated “the very fact that she carried a knife up to the place of crime
reveals that she had pre planned the crime.”

Analysis

27. The trial Court did not have the advantage of the entire record of the
treatment of the Appellant. She was receiving such treatment long before the
fateful incident that occurred on 12th September, 2010. She was admitted for
an entire year as an inpatient at IHBAS from 25 th September, 2010 till 25th
August, 2011. She was suffering from severe depressive episodes. The
treatment record of the GRH Hospital shows that she had attempted suicide
and was having suicidal thoughts as well as thoughts of killing her own

Crl.A. 999 /2016 Page 10 of 16
children.

28. It is unfortunate that in the trial itself, at the first instance, the
prosecution did not think it important to examine the husband of the
Appellant as a witness. He was ultimately examined as DW-3 only after
orders were passed by this Court in the application filed by the Appellant.
DW-3 had with him the complete record of the treatment received by the
Appellant. Had the factual position been brought before the trial Court, it
might have substantiated the Appellant‟s plea under Section 84 IPC.

29. It is urged by learned APP that the record now produced by the
Appellant and led in evidence pursuant to the order of this Court, would
have to show that for the purposes of Section 84 IPC she was, at the time
when the crime was committed, incapable of knowing the nature of the act
or that what she was doing was either wrong or not according to law.

30. In this context, reference must be made to the following observations of
this Court in Radhey Shyam v State ILR 2010 Suppl.(2) Delhi 475 as
under:

“38. It would be virtually impossible to lead direct evidence of what
was the exact mental condition of the accused at the time of the
commission of the crime. Thus, law permits evidence to be led
wherefrom the trier of the facts can form an opinion regarding the
mental status of the accused at the time when the crime was
committed. Thus, evidence which can be led can be characterized as
of inferential insanity….. This evidence, common sense tells us would
be the immediately preceding and immediately succeeding conduct of
the accused as also the contemporaneous conduct of the accused.

39. Thus, with reference to the past medical evidence or the medical

Crl.A. 999 /2016 Page 11 of 16
history of the accused as the backdrop, the duty of the Court is to
evaluate the conduct of the accused before, at the time of and soon
after the crime and then return a finding of fact, whether the accused
was of such unsound mind that by reason of unsoundness he was
incapable of knowing the nature of the act done or incapable of
knowing that the act was wrong or contrary to law
xxx

46. Thus, a fair trial would require that if there is available proof
before the Judge that the accused was suffering from a psychiatric or
psychological disorder i.e. there was a history of insanity, it is the
duty of the Court to require the investigator to subject the accused to a
medical examination and place the evidence before the Court as
observed in the decision reported as AIR 2009 SC 97 Sidhapal
Kamala Yadav vs. State of Maharashtra.”

31. Also, the record of the treatment received by the Appellant shortly prior
to the offence and her conduct at the time or immediately afterwards, also by
evidence of her mental condition could have been produced. In this context,
the following observations of the Supreme Court in Sidhapal Kamala Yadav
v State of Maharashtra (2009) 1 SCC 124 are relevant:

“The onus of providing 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.”

32. The Appellant should be held to have discharged the burden placed on
her under Section 84 of the IPC by producing the record of the treatment she
was receiving for her mental condition prior to the occurrence. What

Crl.A. 999 /2016 Page 12 of 16
precisely the mental condition of the Appellant was at the time of the
occurrence may never be known. As explained by the Supreme Court, the
term „insanity‟ itself has no precise definition.

33. It was explained in Hari Singh Gond v. State of Madhya Pradesh
(2008) 16 SCC 109 as under:

“…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.”

34. Again in Shrikant Anandrao Bhosale v. State of Maharashtra (2002) 7
SCC 748, the Supreme Court explained as under:

“it is the totality of the circumstances seen in the light of the evidence
on record which would prove that the Appellant in that case was
suffering from the said condition. It was added: “The unsoundness of
mind before and after the incident is a relevant fact.”

35. Recently, this Court in X v. State of Delhi 246 (2018) DLT 204 (DB),
after examining the extant case law and medical literature, accepted the plea
of the Appellant in that case with reference to Section 84 IPC.

36. Consequently, this Court is of the considered view that in light of the
evidence that has emerged pursuant to the orders passed by this Court, the
plea of the Appellant with reference to Section 84 IPC must be accepted and
she should get the benefit of the defence relatable to Section 84 IPC.
Resultantly, accepting the plea of the Appellant under Section 84 IPC, she is
acquitted of the offence under Section 302 IPC. The impugned judgment

Crl.A. 999 /2016 Page 13 of 16
and the consequent order on sentence of the trial Court is accordingly set
aside.

Consequential orders

37. The next question that arises is what are the consequential orders that are
required to be passed? As rightly pointed out by the learned APP, there is a
requirement under Section 334 Cr PC that when such a plea is accepted, “the
findings shall state specifically whether he committed the act or not.” In the
present case, there can be no doubt that it is the Appellant who committed
the act but the Appellant, was for reason of unsoundness of mind, incapable
of knowing the nature of the act or that it was contrary to law.

38. Section 335 Cr PC states that where the Court finds that but for the
incapacity found, the act of the Appellant would have constituted an offence,
then the Court should do either of the following things:

“(a) order such person to be detained in safe custody in such place and
manner as the Magistrate or Court thinks fit; or

(b) order such person to be delivered to any relative or friend of such
person.”

39. In the present case, an affidavit was filed even at the stage of the
pendency of the present appeal by Mr. Suresh Kapoor, an uncle of the
Appellant, who furnished a surety for the interim suspension granted to the
Appellant by the order dated 17th November, 2017. This was to enable the
Appellant to file a joint petition for the second motion in the decree of
divorce.

Crl.A. 999 /2016 Page 14 of 16

40. Pursuant to that order, the earlier settlement arrived at between the
Appellant and her husband at the Delhi High Court Mediation
Conciliation Centre („DHCMCC‟) on 17th March, 2017 was implemented
and this was noted by the Court in its order dated 12th March, 2018.

41. Mr. Amit Verma, learned counsel appearing for the Appellant in the
present case, states that the aforementioned uncle of the Appellant would
come forward to give security to the satisfaction of the learned trial Court in
terms of Section 335 (1) (b) read with Section 335 (b) Cr PC.

42. It is accordingly directed that if an application to that effect is made by
the relative of the Appellant under Section 335(3) Cr PC for the delivery of
the Appellant to such relative, as envisaged by Section 335 (1) (b) Cr PC,
the trial Court will pass appropriate orders directing that the Appellant
should be delivered to such relative and in terms of Section 335(4) Cr PC
the relative will also report to the State Government, the action taken under
Section 335 (1) Cr PC.

43. Consequently, the Appellant stands acquitted in the manner indicated.
Her consequent release will be subject to the orders of the trial Court in
terms of the Section 335 Cr PC, as directed hereinbefore.

44. The appeal is accordingly allowed and the impugned judgment and the
order on sentence of the trial Court are hereby set aside. The Appellant will
satisfy the requirement of Section 437A Cr PC to the satisfaction of the trial

Crl.A. 999 /2016 Page 15 of 16
Court. The trial Court record be returned forthwith along with a certified
copy of this judgment.

45. The appeal is disposed of in above terms.

S. MURALIDHAR, J.

I.S. MEHTA, J.

MARCH 23, 2018
rd

Crl.A. 999 /2016 Page 16 of 16

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