Smt. Parmo (In Jail ) At: 10:15 A.M. vs State Of U.P.
2017 Latest Caselaw 7306 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

 A.F.R.
 

 
			RESERVED                                                                         
 
       Case :- CRIMINAL APPEAL No. - 1368 of 2015
 

 
	Appellant :- Smt. Parmo (In Jail )
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person,Manju Gupta (Amicus Curiae)
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Lamba,J.

Hon'ble Dinesh Kumar Singh,J.

(delivered by Dinesh Kumar Singh, J.)

1. The present appeal is a jail appeal arising out of the judgment and order dated 03.10.2015 passed by the Additional District & Sessions Judge, Room No.9, Lucknow in Sessions Trial No.739 of 2004, State Vs. Parmo wife of Ram Kuware.

2. The story as set out by the prosecution is that on 10.07.2004, a written complaint Exh. ka-1 was given at the Police Station, Gosaiganj, District, Lucknow by Shiv Prasad Rawat, PW-1 stating that he was village Pradhan of the village, Hasanpur Khewli, Police Station Gosaiganj, District, Lucknow. On the same day at around 7 to 8 p.m, Parmo wife of Ram Kuware, who was mentally retarded, bolted herself inside the house and killed her one year old daughter by knife slitting throat and she had stabbed herself on her stomach. The villagers got collected and broke open the door. Parmo was sent to Balrampur Hospital for treatment of her injuries. The dead body of the child was lying there. On the basis of aforesaid written information, F.I.R. Exh. ka-6 was registered and after investigation charge sheet, Exh. ka-8 was filed.

3. Inquest proceedings were conducted on 11.07.2004 as when the investigating officer reached the place of incident, it was night and, therefore, he decided to conduct the inquest proceedings on the next day. According to the inquest report Exh. Ka-2, in the opinion of the inquest witnesses the death of the child Laxmi was caused due to injuries caused by knife. The post mortem examination was conducted on 11.07.2004 itself at 3 p.m. The following ante mortem injuries were found :-

(a) Incised wound of size 6.0 cm x 1.0 cm into neck cavity deep present on front of neck 2.5 cm below mid of Chin. Injury in neck cavity deep. Larynx and trachea cut through and through. All the blood vessels are extended carotid artery cut on the right side of neck. Margins are sharp and clear cut and well defined rounded.

(b) Stabbed wound of size 0.5 cm x 0.5 cm muscle deep present on right side of face 3 cm below right eye margin clear cut and rounded.

(c) Stabbed wound of size 0.5 cm x 0.5 muscle deep present on right side of the face 2 cm below the injury no.2 margin are clear cut rounded.

4. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of ante mortem injuries. After the case was committed to the Sessions Trial, on 2.12.2014, charges were framed under Sections 302 and 309 I.P.C. against the accused/appellant Parmo. Prosecution examined as many as 9 witnesses and submitted 12 documents to prove the case.

5. We have heard Ms. Manju Gupta, learned amicus curiae, Mr. Sharad Dixit, learned A.G.A.for the respondent State. Considering the peculiar facts and circumstances of the case, on request, Mr. Rishad Murtaza, learned Advocate has also ably assisted the Court.

6. The hearing of the case got concluded on 10th October, 2017 the World Mental Health Day and the appeal is of a person who cannot be said to be of sound mind. This might be a coincidence or might be His wish to see that justice gets delivered to a mentally challenged person who is incarcerated for the offence of committing murder of her one year old child.

7. Now coming to the facts of the case, it is interesting to note that in the F.I.R. itself it was specifically stated that the accused/appellant was mentally retarded. But before sending her to judicial custody, she was never sent for medical examination.

8. On 29.12.2004 for the first time the accused appellant was referred to Balrampur Hospital by the jail authorities for treating her of mental disorder. At Balrampur Hospital, she was declared as psychotic and given treatment. It appears that she was again referred to the Balrampur Hospital by the jail authorities on 3.3.2005 where she was declared psychotic. The district jail superintendent also sent a report to the Principal Secretary, Prison Administration, Government of Uttar Pradesh on 3.3.2005 itself stating the fact that Parmo, accused appellant had been declared as psychotic by Balrampur Hospital.

9. The certificate of the Medical Officer of the District Jail Hospital dated 23.04.2006 in respect of the mental health of the accused/appellant was to the effect that she had been in the Jail Hospital for around one year and received treatment under his observation and he observed about her behaviour as under:-

" i. That she was agitated with delusion and talks.

ii. That off and on in delusion/illusion and hallucination and not cooperative.

iii. Sometime she was agitated using abusive language and sometime she was dull.

iii. That she is not able of taking care of herself or earning of livelihood."

10. The Learned Magistrate also in his report noted the behaviour of the accused appellant Parmo in following words "abusive language, rough talking, removes clothes, beats other convicted, abuses all religions"

11. On the basis of aforesaid reports, an application was moved by the Superintendent of District Jail, Lucknow before the Trial Court for sending the accused appellant to Mental Hospital, Varanasi for her treatment. On 27.04.2006, the Trial Court granted permission for sending accused appellant Parmo to Mental Hospital, Varanasi and ordered action to be taken as per the Jail Manual and Rules. In pursuance to the aforesaid order passed by the Trial Court on the application of the Superintendent, District Jail, Lucknow, Parmo was sent to the Mental Hospital, Varanasi for treatment on 2.5.2006. The Medical Board of the said Mental Hospital in its meeting dated 8.11.2006 declared Parmo as psychotic patient and her treatment was to continue.

12. The said report was send to the Trial Court by the Director and Chief Superintendent, Mental Hospital, Varanasi on 27.11.2006. She remained in the Mental Hospital, Varanasi till 6.12.2007. It is clear from the record that on 28.5.2007 the accused/appellant was again examined by the Medical Board of the Mental Hospital, Varanasi and she was again found to be psychotic patient and her treatment was to continue. This report was also forwarded on 11.06.2007 by Director and the Chief Superintendent of Mental Hospital, Varanasi to the Trial Court, Lucknow. However, despite these reports of the Medical Board of the Mental Hospital, Varansi, the Trial Court on 13.12.2007 passed the order for the appellant's appearance before the Court on which Jail Superintendent of District Jail, Lucknow informed the Court that she was in Mental Hospital, Varanasi and was declared as psychotic patient by the Medical Board and she was required to continue with the treatment.

13. Despite this medical record of the accused/appellant having been declared as psychotic patient by the Medical Board of the Medical Hospital, in compliance of the order passed by the Trial Court, she was transferred back to the District Jail, Lucknow on 6.12.2007 for recording her statement under section 313 Cr.P.C. and thereafter, she remained in the District Jail.

14. From time to time the reports in respect of the mental health of the accused/appellant were submitted to the Trial Court. In one of the reports submitted before the learned Trial Court, it was said that she was being treated by specialist of the Psychiatry Department of Balrampur Hospital, Lucknow but her condition was not improving rather it was deteriorating

15. The Trial Court vide order dated 4.8.2010 directed the Superintendent, District Jail, Lucknow to get the accused/appellant examined by the specialist of the Psychiatry Department of King George Medical University, Lucknow and report thereof to be submitted in the Court. In pursuance of the said order, the accused/appellant was admitted in the Psychiatry Department of the K.G.M.C, Hospital, Lucknow on 9.8.2010 and was treated.

16. Doctor P. K. Dalal, Professor and Head of the Department of the Psychiatry of the C.S.M. University submitted his report in respect of the mental condition of the accused/appellant. It was said in the report that the accused/appellant was suffering from moderate mental retardation (IQ-40, mental age 6 1/2 years). It was also opined in the report that the accused/appellant needed supervision throughout her life and she was unable to take care of herself or raise the family.

17. After this report, another report was called for regarding the mental health of the accused appellant and doctor, Madhu Agarwal, lecturer in the Department of Psychiatry, K.G.M.U., Lucknow vide her report dated 10.7.2013 opined that IQ of accused/appellant was 70-75 and had capacity to work independently and she was fit for trial.

18. It appears that prosecution witnesses were examined between 10.5.2005 and 25.9.2007 when she was regularly receiving treatment for her psychotic disorder. Her statement under section 313 Cr.P.C. was recorded on 14.9.2015.

19. The complainant PW-1 in his statement before the court proved the complaint Exh. ka-1 and inquest report Exh. ka-2. He said marriage between Ram Kuware and Parmo was not performed but Ram Kuware brought Parmo from Lucknow. Ram Kuware was a rickshaw puller in Lucknow and used to come to the village once in 15 days and after staying there for a day or two he would go back for work. The girl child was born to Parmo. Parmo was mentally slow and her care was taken by Ram Kuware's mother and sister who were labourers.

20. On 10.07.2004 when the incident took place, Ram Kuware was not in the village. The P.W.-1 was informed about the incident and when he reached the house of the Ram Kuware, around 50 people had already gathered there. The females brought out Parmo and the dead body of the girl child was lying inside the room itself. He denied the suggestion that Ram Kuware was inside the house and he hid himself when people entered the room. Thus, he supported the contents of the complaint and First Information Report. Important fact which is relevant to note that emerges from his deposition is that Parmo was mentally retarded and she was unable to take care of herself.

21. Smt. Billa, mother of the Ram Kuware was examined as P.W.2 and in her Examination-in-Chief, she said that investigating officer took the accused/appellant to the hospital. She further deposed that marriage was not performed between Ram Kuware and Parmo. Ram Kuware had brought her to the village. She did not know from where Ram Kuware brought her. She said that accused/appellant's mental condition was same at the time of commission of offence as it was when Ramkumar brought her to the village. She deposed that the accused appellant was pregnant when she was brought to the village by Ram Kuware. She deposed that 2-4 male and 3-4 female got collected after the incident. She volunteered that when the appellant/accused was lying on the cot, she murmured that she only killed the girl child and no one else. Neither PW-1 nor PW-2 witnessed the incident.

22. Dr R.K. Gupta, PW-5 proved the post mortem examination report. The investigating officer, R.K. Agnihotri was examined as PW-8 to support the prosecution case. In his statement he said that Parmo had already been sent to the hospital by her family members for treatment when he reached the place of incident.He found the dead body of the girl child lying.

23. The Court examined three court witnesses namely, Dr. Rizwana Sultan, Dr. P.K. Dalal and Dr. Suneel Pandey as C.W.1, C.W.2 and C.W.3 respectively. Doctor Rizwana Sultan, Senior Medical Officer of Nari Bandi Niketan Modern Prison, Lucknow, deposed that on 3.3.2005 Balrampur Hospital declared the accused appellant as psychotic and treatment to her was prescribed. Thereafter, she was sent to the Mental Hospital, Varanasi where she remained till 8.11.2006. The Medical Board of the said Hospital found her mental condition unwell thereafter she was sent back to District Jail, Lucknow where she was given regular treatment by the specialist of Balrampur Hospital, Lucknow. She further said that the accused appellant had been continuously under treatment and in her opinion the mental condition of the accused appellant was not normal and the expert opinion should be taken with respect to her mental condition.

24. C.W.2, doctor P. K. Dalal M.D. Psychiatry, Professor & Head of Department of Psychiatry Department, CSM Medical University, Lucknow said that the accused/appellant was treated under his supervision during 9.8.2010 to 26.8.10 in Psychiatry Department C.S.M. University, Lucknow and he found that she was only suffering from moderate mental retardation (IQ 40 mental age at about 6½ years). It was said that a patient of moderate mental retardation would be unable to interact with others, live without support, raise the family or carry any business or profession to support himself/herself. He further added that in the most of the cases, this type of disease was by birth, however, it could also be result of serious head injury. No such injury was found on the body of the accused/appellant Parmo and, therefore, her illness appeared to be by birth. There is no treatment for such an illness. He was questioned that whether accused appellant Parmo knew the nature of work and result of her action, then this witness said ''no'. On further questioning whether the appellant accused was unable to know the nature and result of her action by birth, he said ''yes'. He further stated that the accused appellant did not understand what was good or bad for her nor she could defend herself because she was suffering from moderate mental retardation by birth and her condition would remain as it is throughout her life. There was no possibility of any improvement in future and such a person was required to be kept under continuous supervision and she could not lead her life on her own.

25. Doctor Sunil Pandey, specialist in the Psychiatry Department, Balrampur Hospital, who treated the accused appellant for the first time for mental disorder was examined as C.W.3. He said that during check up he did not find the accused appellant suffering from any serious mental disorder. She could understand the simple dialogue and she was not mentally retarded. It is very strange that this Court witness deposed against the medical record of his hospital.

26. On the basis of aforesaid evidence, oral and documentary, the trial court found the accused/appellant guilty of committing murder of her one year old daughter, Lakshmi. However, she was acquitted of charges under Section 309 I.P.C. and she was sentenced under Section 302 I.P.C. for life imprisonment with fine of Rs. 5,000/- and in default of payment of fine one month additional imprisonment was ordered.

27. Following questions arise for consideration in the appeal:

a. Whether the accused/appellant had committed the murder of her one year old girl child, Lakshmi on 10.07.2004? and,

b. Whether the accused/ appellant could be said to be legally insane and therefore, entitled to the benefit of section 84 of the Indian penal code?

28. Ms. Manju Gupta, Learned amicus curiae has forcefully argued that there are material contradictions in the testimonies of the PW-1, the complainant, PW-2, the mother of Ram Kuware and PW-8, the IO. She would point out the contradictions in their depositions in respect of number of people got collected at the place of incident, admission of Parmo in the Hospital and suggests that Ram Kuware might have committed the crime to get rid of Parmo and the daughter and to save her son, the Pw-2 and PW-1 who are relatives set up the story as in her deposition P.W.-2 volunteered that when Parmo was made to lie on the bed, she said that she only killed the Child and no one else. She would further argue that the evidence of witnesses does not inspire confidence and it is unnatural for a mother who is said to be mentally retarded to kill her own one year child. She further submits that mentally retarded persons are very attached to their children and it is unnatural for such a person to murder own child.

29. Mr. Rishad Murtaza, submits eloquently that even if the accused/appellant killed the child, she is entitled to the benefit of section 84 and he took us through her medical record and depositions of the witnesses particularly Court witnesses. Mr. Sharad Dixit, Learned AGA would submit that it is only the accused/appellant who had committed the offence and there are no material contradictions in the testimonies of the prosecution witnesses to say that the prosecution had failed to prove its case beyond reasonable doubt. With respect to insanity of the accused/appellant, the learned AGA fairly concedes that the Trial Court has not properly appreciated the medical record of the accused/appellant.

30. Be that as it may, even if the prosecution has proved its case beyond reasonable doubt that it was the accused/appellant who had committed the offence, the question yet to be considered is whether the medical insanity of the accused/ appellant is such that she could be said to be legally insane and entitled to the benefit of exception under Section 84 of the Indian Penal Code.

31. At the outset, let us consider the relevant provisions of Indian Penal Code and Indian Evidence Act extracted here under:

"S.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."

"S.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."

Relevant provisions of the Indian Evidence Act are:

"S.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 (45 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."

"S.4. Shall presume.--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact 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."

"S.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."

32. Thus, if the prosecution discharges its burden of proving that the offence was committed by the accused, and the accused takes the plea of insanity under section 84 of the Indian Penal code being an exception, under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused to say that at the time of doing that act, by reason of unsoundness of mind he was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. The court shall presume the absence of such circumstances under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof.

33. The law presumes every person of the age of discretion to be sane unless contrary is proved. Therefore, to grant benefit of Section 84 of the I.P.C. to an accused of crime, the court has to consider the circumstances as that preceded, attended or followed the crime. If these circumstances establish insanity of the accused by credible evidence, the Court is required to grant the benefit of section 84 of the I.P.C. to the accused.

34. The crime is a voluntarily act which is an outcome of an intent to cause an evil consequence. Mense rea is an essential element in every crime. The confluence of act and guilty mind constitutes a crime. This theory is based on the latin maxim ''actus non facit rcum nisi mens sit rea' which means that the act does not makes one guilty unless he has a guilty intention. Section 84 of the Indian Penal Code is an exception based on the aforesaid maxim that an insane person is not punished because he does not have any guilty mind to commit the crime.

35. English Law on insanity is based on Mc'Naghten rule(1843) 4 St Tr (NS) 847 and section 84 of the Indian Penal Code, is based on said Mc'Naghten rule. In the aforesaid case facts were that in 1843, Mac Naughten killed Mr. Drummond, the Private Secretary of Sir Robert Peel, and the then Prime Minister of England. Mc Naughten was under the insane delusion that Sir Peel had injured him and again was going to injure him. So one day mistaking Drummand for Sir Peel, he shot and killed him. Defence Counsel pleaded that due to insanity the accused was not able to know that he was violating laws. Medical report produced in support of proof showed that the accused was labouring under a morbid delusion which carried him away beyond the power of self control. Mc. Naughten was acquitted on ground of insanity. This case created a sensation in England and debates were conducted, including in the House of Lords. Fifteen Law Lords formulated some principles which later become famous as Mc. Naughten Principles of Insanity are:

"1. Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to the satisfaction of jury.

2. To establish a defence on the ground of insanity, it must be clearly 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 if he did know it, that he did not know what he was doing was wrong.

3.if the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to the law of the land, he is punishable.

4. Where a person, under an insane delusion as to existing facts commits, an offence in consequence thereof criminality must depend on the nature of the delusion. If he labours under partial delusion only, and not in other respects insane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real.

5. A medical witness who has not seen the accused before trial should not be asked to give his opinion as to the state of accused's mind."

36. Every homicide is not a murder. A culpable homicide is a murder when the death is caused by an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or having knowledge that the act of the accused is likely to cause death. A person of unsound mind cannot be said to have an intention of causing death or knowledge of knowing the nature of his act which would likely cause death. For that matter, under section 82 of the Indian Penal Code, there is a presumption that intention or knowledge cannot be attributed to a child below the age of 7 years for committing the offence and, therefore, nothing would be an offence which is done by a child below 7 years of age. Similarly, under section 84 of the Indian Penal Code, there is presumption that a person of unsound mind can not be said to possess the requisite mense rea to commit a crime and therefore, in case, the crime is committed by a person of unsound mind, he is to be acquitted for such an offence punishable under the provisions of the Indian Penal Code.

37. The scope of Section 84 of the Indian Penal Code came to be dealt with very elaborately by the Supreme Court in the case of Dahyabhai Chhanganbhai Thakker Versus State of Gujarat, AIR 1964 SC 1563, wherein the Supreme Court, after having considered the scope of Section 84 of the I.P.C. in the light of Section 105 of the Indian Evidence Act, has held as follows:-

"5..............................................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 Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 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 Section 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 Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 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 consider the existence of the said circumstances so probable that a prudent man would act upon them. The 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 Section 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 Section 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."

In para 7 of the aforesaid judgment, it has been further held:

"7. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."

38. Thus, if the evidence before the Court creates a doubt regarding the requisite mense rea in committing the offence by reason of insanity, the accused is entitled to the benefit of section 84 of the Indian Penal Code.

39. The Supreme Court in the judgment of Elavarasan versus State (2011) 7 SCC 110 while dealing with section 84 of the Indian Penal Code held as under:

"21. In the light of the above evidence and in the absence of any challenge to the veracity of the witnesses produced by the prosecution we have no manner of doubt in our mind that the appellant alone was responsible for the assault on his wife PW2, Dhanlakshmi and baby Abrami who lost her life as a result of the injuries sustained by her in the said incident. Left at that there can be no escape from the conclusion that the appellant was guilty of committing culpable homicide of his daughter Abirami aged about 1 1/2 years and an attempt to commit the murder of his wife Dhanlakshmi, even if the assault on the mother of the appellant is taken as doubtful on account of the injured turning hostile at the trial and attempting to attribute the injuries sustained by her to a fall.

22. The question, however, is whether the appellant was entitled to the benefit of Section 84 of Indian Penal Code which provides that 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 who is incapable of knowing that what he is doing, is either wrong or contrary to law. Before adverting to the evidence on record as regards the plea of insanity set up by the appellant, we consider it necessary to refer to two aspects that bear relevance to cases where a plea of insanity is raised in defence by a person accused of a crime. The first aspect concerns the burden of proving the existence of circumstances that would bring the case within the purview of Section 84 of the I.P.C. It is trite that the burden of proving the commission of an offence is always on the prosecution and that the same never shifts. Equally well settled is the proposition that if intention is an essential ingredient of the offence alleged against the accused the prosecution must establish that ingredient also.

23. There is no gainsaying that intention or the state of mind of a person is ordinarily inferred from the circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the body on which it is struck, it would be reasonable to assume that the accused had the intention to cause the kind of injury which he inflicted. Having said that, Section 84 can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. But what is important is that the burden of bringing his/her case under Section 84 of the IPC lies squarely upon the person claiming the benefit of that provision.

40. Further, the Supreme Court in the case of State of Rajasthan versus Shera Ram alias Vishnu Dutta: (2012) 1 SCC 602 while interpreting Section 84 of the I.P.C. opined as under:-

"17. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntas est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour.

18. In Surendra Mishra v.  State of Jharkhand [(2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232] , the Court was dealing with a case where the accused was charged for an offence under Section 302 IPC and Section 27 of the Arms Act. While denying the protection of Section 84 IPC to the accused, the Court held as under: (SCC pp. 499-500, para 11)

"11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression ''unsoundness of mind' has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term ''insanity' carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the 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 affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Penal Code."

19. From the above stated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability."

41. In the light of the above exposition of law, it is to be examined whether the trial court was correct in concluding that the accused appellant was not of unsound mind at the time of committing the crime and therefore, did not grant the benefit of Section 84 of the Indian Penal Code and convicted her for offence of committing the murder of her female child.

43. In our considered opinion the trial Court has fallen in serious error in omitting the evidence available on record inasmuch as the complaint Exh.Ka-1 itself mentions that the accused appellant was mentally retarded. Throughout her judicial custody, she has been receiving the treatment for mental illness so much so that she was referred to the Mental Hospital, Varanasi where she remained admitted for a fairly long time and only by the order of the court she was brought back. Dr. P.K. Dalal professor and Head of Department of Psychiatry of King George Medical University specifically stated in his report that her illness was by birth. He stated that she did not know the consequences of her acts. Very strangely the trial court did not consider the evidence of this court witness and relied on the reports submitted by one Ms. Madhu Agarwal, lecturer of the same university to hold that the accused appellant was of sound mind and on that basis held her guilty in a casual manner without adverting to the opinion of Medical Board of the Mental Hospital and without properly appreciating the evidence of C.W.-1 and C.W.-2.

44. We have considered the entire evidences and we are of the opinion that looking at the medical evidence available on record, the accused appellant cannot be said to be person of sound mind having intention or knowledge to commit the offence of committing the murder of her girl child and the benefit of Section 84 of the Indian Penal Code must be given to her.

45. In the result, the Criminal Appeal is allowed and the judgment and order of conviction and sentence of the appellant under Section 302 I.P.C. by the Trial Court in Sessions Trial No.739 of 2004 dated 03.10.2015 is hereby set aside and the appellant is acquitted of all charges. Fine amount, if any paid by the appellant shall be refunded to her.

46. We further direct the Senior Superintendent, District Jail, Lucknow to get the appellant examined by the Head of the Department of Psychiatry of the King George Medical College and take action for her treatment as per the Provisions of the Mental Health Act, 1987 and rules made there under.

Order date:27.11.2017

prateek