Ram Singh vs State Of U.P.
2022 Latest Caselaw 22385 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 48
 
Case :- JAIL APPEAL No. - 5202 of 2012
 
Appellant :- Ram Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Ajay Kumar Srivastava,Chandra
 
Bhushan Tiwari (A.C.)
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Suneet Kumar,J.

Hon'ble Syed Waiz Mian,J.

Per Hon'ble Syed Waiz Mian,J.

1. This Jail Appeal has been filed by appellant Ram Singh, through

Superintendent, District Jail, Lalitpur, under section 383 Cr.P.C.

against judgment of conviction and sentence dated 28.3.2011 passed

by Additional Sessions Judge (Ex Cadre), Lalitpur in Session Trial No.

44 of 2007, State vs. Ram Singh, arising out of Case Crime No. 1089

of 2007, under Section 302 I.P.C., whereby appellant was convicted

for offence punishable under section 302 I.P.C. to life imprisonment

with fine of Rs. 25,000/- and in default of payment of fine undergo

three years' additional imprisonment.

2. Brief facts of the case in nutshell are as under:

3. Informant-None Raja, has stated in the written First Information

Report that his brother Ram Singh was suffering from mental illness/

disorder, since last ten years. On 22.03.2007, at around 1 p.m. his

wife Smt. Guddi Raja, Badi Raja w/o appellant Ram Singh, his

daughter and son, aged about 5 and 1 years, respectively, were

present in the house. All of a sudden appellant-Ram Singh, lost his

mental balance and assaulted all the aforesaid persons with axe

causing injuries and all the injured succumbed to the injuries.

4. Bodies were lying in the courtyard of the house and the

incident was seen by many villagers. Appellant-Ram Singh, while

running from the house was caught by the villagers Narendra

Singh, Mulayam Singh, Mansingh and Govind Das.

5. On the strength of the First Information Report, case at

Crime No. 1089 of 2007, under Section 302 I.P.C. came to be

registered on 22.03.2007, at Police Station-Kotwali, District-

Lalitpur.

6. P.W.-4, Sub Inspector, Kallu Prasad Yadav, written the First

Information Report, Chik at 2.30 p.m. and he also entered the

substance of the First Information Report in the G.D. No. 33 of

22.03.2007. Investigation was entrusted to the P.W.-7, N.H.

Farooqui, who took the investigation at the direction of Station

House Officer and reached at the place of occurrence and saw that

dead bodies of Smt. Guddi Raja w/o Naune Raja, Smt. Badi Raja

w/o Appellant-Ram Singh, Kumari Mandavi and Mangal Singh

daughter and son of appellant-Ram Singh, were lying in the

courtyard of the house. Thereafter, Station House Officer, Kotwali,

Raj Bahadur Sahu and S.I. Shri Ram Ratan Verma, along with

police personnel also reached on the spot. In the presence of

Panch, inquest reports of the bodies of the deceased, on the

dictation of S.H.O. Raj Bahadur Sahu, and other necessary papers

in connection with the inquest of the bodies of the deceased, were

prepared by Sub Inspector N.H.Farooqui.

7. P.W.9-, Raj Bahadur Sahu, Sub Inspector, has prepared site

plan of the place of occurrence, paper no. 66 Ka. He in the

presence of Mahesh Prasad and Virendra Singh, collected the blood

stained and plain earth and same were put in two separate small

containers and both containers were sealed.

8. P.W.-9, Raj Bahadur Sahu, had also collected the blood

stained axe in the presence of the witnesses and memo, paper No.

7-ka was prepared and signed by accused Ram Singh, who was

caught on the spot; Ram Singh had worn blood stained shirt and

the accused was asked to strip off his shirt. It was also taken into

possession and memo, in the presence of Virendra Singh and

Mahesh Prasad was prepared and signed.

9. Inquest report of the dead bodies of the deceased and other

necessary papers were forwarded to district mortuary to conduct

autopsy to ascertain real cause of death of the deceased.

10. Dr. M.C. Gupta, posted in District Hospital, Lalitpur,

conducted the autopsy over the bodies of the deceased and he in

his writing and signatures, prepared autopsy reports of the

deceased.

11. Ram Ratan Verma, who had also reached on the place of

occurrence accompanying Station House Officer, together with N.H.

Farooqui, S.I. had conducted the inquest over the bodies of the

deceased. On the strength of the collected incriminating evidence,

during investigation, Investigating Officer has submitted charge

sheet, paper no. 3 Ka, against Ram Singh under Section 302 I.P.C.

12. Learned Chief Judicial Magistrate, vide order dated

18.05.2007 committed the case for trial of the accused to District

and Sessions Judge. In the trial Court a criminal case was

registered as S.T. No. 44 of 2007.

13. Charge under Section 302 I.P.C. against the accused was

framed on 24.03.2009 but the accused has denied the charge and

claimed trial.

14. Prosecution in order to prove charge under Section 302 I.P.C.

against the appellant/accused Ram Singh examined, P.W.-1 Naune

Raja, P.W.2-Narendra Singh, P.W.3-Govind Das, P.W.-4 Kallu

Prasad Yadav S.I., P.W.5-Dr. M.C. Gupta, P.W.-6 Ramesh, P.W.-7

N.H.Farooqui, S.I. P.W.-8 Ram Ratan Verma, Sub Inspector

(retired) P.W.9- Raj Bahadur.

15. Learned trial Court examined, Dr. Amrendra Kumar C.W.-1

consultant, psychiatrist as court witness.

16. Statement of accused under Section 313 Cr.P.C. was recorded.

Accused Ram Singh, admitted in his statement that before and at

the time of incident he was in the state of unsoundness of his

mind and in that state of mind, injuries to the deceased were

caused. Deceased Smt. Guddi Raja, was wife of his brother Naune

Raja whereas, Smt. Badi Raja, Kumari Mandavi and Managal

Singh, were his wife, daughter and son respectively.

17. With regard to the evidence that villagers Narendra Singh,

Mulayam Singh, Mansingh and Govind Das, had caught him with

assault weapon axe on the spot, accused has stated feigned

ignorance, saying that he had gone mad.

18. Accused in his statement under Section 313 Cr.P.C. has lastly

stated that 10 years, prior to the incident, he was under medical

treatment of Dr. Rajiv Jain, for his mental illness. For the same,

he was also treated in Gwalior and M.P. Incident had occurred

because of his madness. Subsequently his brother was called at the

police Station by Daroga Ji and on his direction his brother got

written the First Information Report.

19. On behalf of appellant-accused- D.W.-1 Dr. Rajiv Jain was

examined.

20. Learned trial Court heard the rival contentions of the learned

counsel for the parties and on the strength of the evidence on

record convicted the appellant/accused for offence under Section

302 I.P.C. and sentenced him with life imprisonment and also

imposed fine of Rs. 25,000/- and in default of payment of such

fine he was directed to undergo three years additional

imprisonment.

21. Heard Shri Chandra Bhushan Tiwari, Amicus Curiae, for the

appellant and Ms. Manju Thakur, learned A.G.A.-Ist, for the State

and perused the record.

22. Appellant/accused in his statement under Section 313 Cr.P.C.

has not denied the incident. He has admitted that in the alleged

incident his Bhabhi (Sister-in-law) his wife Smt. Badi Raja, his

daughter Kumari Mandavi and his son Mangal Singh had been

killed. The accused has also expressed his ignorance regarding the

evidence on record. However, he has further stated that his trial

was based on wrong facts. Accused has also admitted in his

statement that due to his loss of mental balance, at the time of

incident, injuries to the deceased were having been caused. He has

taken defence that at the time of incident he was suffering from

mental disorder.

23. At the time of statement, under Section 313 Cr.P.C., on

28.04.2011, the accused has admitted that after the treatment at

Varanasi he has become normal.

24. In this case the commission of alleged incident has not been

denied by the accused and also the manner of death of the

deceased has not been disputed. The accused before the learned

trial Court had claimed the benefit of Section 84 of I.P.C.

Section 84 stipulates 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 that he is doing what is either

wrong or contrary to law."

25. In the Indian Penal Code, Section 76 to Sections 106 are

general exceptions. Onus lies on the accused to prove that at the

time of alleged incident, due to unsoundness of his mind he was

incapable of knowing the nature of his act or that what he was

doing was either wrong or contrary to law. If, accused succeeds to

establish that at the time of incident, he was suffering by a mental

disorder of such magnitude that he was incapable to know his act

and succeeds to establish to bring his case under Section 84, he

would be entitled to the benefit of Section 84, of the Code.

26. This Court has to consider the circumstances that proceeded,

attended or followed the crime, but it is equally true that such

circumstances must be established by credible evidence.

27. In Bapu Gajraj Vs. State of Rajsthan, reported in 2007, Vol.8

SCC 66 Apex Court has held as follows:

"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 persons cut 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 Mohammad v. State of

Maharashtra, 1972 Cr. LJ 1523 (SC) , held that 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. 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."

28. In Sudhakaran Singh vs. State of Kerala, reported in 2010 ,

Vol. 10, SCC 582, the plea taken was that the appellant was

suffering from "paranoid schizophrenia". The term has been defined

in Modi's Medical Jurisprudence and Toxicology1 as follows:

"Paranoia is now regarded as a mild form of paranoid

schizophrenia. It occurs more in males than in females. The main

characteristic of this illness is a well-elaborated delusional system

in a personality that is otherwise well preserved. The delusions are

of persecutory type. The true nature of this illness may go

unrecognised for a long time because the personality is well

preserved, and some of these paranoiacs may pass off as a social

reformers or founders of queer pseudo- religious sects. The

classical picture is rare and generally takes a chronic course.

Paranoid Schizophrenia, in the vast majority of case, starts in the

fourth decade and develops insidiously. Suspiciousness is the

characteristic symptom of the early stage.

29. P.W.-1 Naune Raja, in his ocular has evidence has stated that

on his dictation, First Information Report was having been written

by Virendra Singh and after the same was read over to him, he

had signed the report. P.W.-1 has recognized and proved written

First Information Report as Paper No. 5 Ka as exhibit Ka-1.

30. P.W.-1, Naune Raja, has admitted in his cross examination

that at the time of alleged incident he was not present at the spot

and when he had reached at the place of occurrence the alleged

incident had already been occurred. He has also said that with

regard to the alleged incident he was informed by Raghvendra

Singh but he (Raghvendra Singh) has not been examined,

therefore, the above statement of P.W.-1 Naune Raja, that he was

informed by Raghvendra Singh and upon such information he had

reached on the place of occurrence has not been corroborated by

Raghvendra Singh.

31. In the First Information report, Exhibit Ka-1, the alleged

incident is said to have been witnessed by many villagers but none

of them has been indicated in the written First Information Report.

In the First Information Report it is alleged that when he had

reached on the spot, he saw that accused was caught hold by the

villagers Narendra Singh, Mulayam Singh, Mansingh and Govind

Das. It is also alleged, that accused was caught by the villagers

while he was running from the house.

32. P.W.-2, Narendra Singh, an eye witness, has deposed in his

testimony that he does not remember the date of the incident. On

the date (day) of the incident, by axe accused Ram Singh, had

assaulted his wife and two children wife of P.W.-1 Naune Raja.

The incident occurred at around 1-1.30 p.m., when he had reached

at the place of occurrence many villagers of his village had

reached there. Villagers Rajpal Singh, Mulayam, Takhat, Govinda

who had reached on spot. Next-P.W.1 has stated that the dead

bodies were lying scattered; he had seen that Ram Singh had tried

to run from his granary (Bakhari); he was wielding blood stained

axe; he and other people had caught him. At the time of incident,

parents and brother of accused Ram Singh, were not present.

However, he did not see Ram Singh to commit the incident of

killing the deceased.

33. P.W.-2 Narendra Singh, has been declared hostile and he has

also been cross examined by the prosecution. He has stated in his

cross examination that accused Ram Singh intermittently used to

suffer from mental dis balance. He was also got treated by his

father.

34. P.W.-2 Narendra Singh, in his cross examination, done on

behalf of the accused, has stated that Ram Singh was also treated

for his ailment in Lalitpur and Gwalior.

35. However, at the time of his marriage he was not in such a

mental state. After the marriage, during his mental loss, he had

run two to three times from his house; Once he went missing for

about a year and he was found in shabby condition near a temple;

he was brought back to his house. Ram Singh, on his main gate,

was caught by him and other villagers.

36. At the time when he saw Ram Singh, he was abusing and his

eyes had turned red. The parts of the dead bodies of the deceased

were scattered in the granary (Bakhari); Virendra Singh had

collected the parts of the bodies of the deceased and put them in

the gran (Bakhari) from the gate of house; Granary (Bakhari) was

situated at the distance of 4-5 steps.

37. He has also corroborated the evidence of P.W.-1 Naune Raja

to the effect that Ram Singh was treated for his ailment at Gwalior

and Lalitpur.

38. P.W.-2 Narendra Singh has also stated in his deposition that

Ram Singh used to lose control over his mind intermittently. Since

the marriage until the alleged occurrence, he had suffered

occasionally from his mental loss.

39. P.W.-3 Govind Das, on 05.12.2009, in his ocular evidence has

said that about two years, eight and half months before the

incident, at 1.00 p.m. had occurred; he was staying back at his

home; he heard the screams of children and he rushed to the spot

and he witnesses at the gate, he saw Virendra Singh, Rajpal Singh

Havansh Singh, Mulayam Singh, Malkhan Singh and Indal Singh,

and other 10-12 persons had already reached at the house of

Naune Raja; Ram Singh was having blooded axe in his hand; he

had killed his wife, children and wife of Naune Raja; all the dead

bodies of the deceased were lying scattered in the courtyard. Ram

Singh had axed all the deceased to death. On challenge by him

and other persons, accused with axe followed them; they hidden

themselves; when Ram Singh, threw his axe to run from the spot,

they caught and tied him with tree.

40. P.W.-3, Govind Das, has stated in his examination in chief

that after the accused having been tied with the tree, they went in

the courtyard of the house and witnessed that the dead bodies of

Smt. Badi Raja, Smt. Guddi Raja, Kumari Mandavi and Mangal

Singh, were lying there. Bodies of the deceased were cut by axe to

pieces. Police had also been informed.

41. P.W.-3, Govind Das in his examination in chief has not

deposed about the arrival of the informant Naune Raja and his

parents on the place of occurrence.

42. P.W.-3 in his cross examination has stated that in respect of

murder of the deceased the villagers had informed the police; any

member of the family had not informed the police; from his house,

Ram Singh's house is situated at the distance of 500 meters. He

and other persons had caught and tied the accused with tree; he

had tried to run from his house. At about 200 steps, Ram Singh

was caught; he was not caught at the gate of his house. P.W.-3

has further stated in his cross examination that none had went to

inform Naune Raja in respect of the incident; Naune Raja on

hearing noise had reached on the spot; he did not know as to

whether Raghvendra Singh had gone to inform Naune Raja or not.

43. P.W.-3 Govind Das, has also stated that Ram Singh had

thrown the axe near the dead bodies in the courtyard; the clothes

worn by him were blood stained; on catching hold of the accused

blood on their clothes had not transferred; Ram Singh was not in a

state of his mental loss; he did not know whether Ram Singh was

medically treated or not; he has also admitted in his cross

examination that Ram Singh, before the incident had absconded

from his house and had returned to his house after the lapse of

one month; Since he (P.W.-3) did not remain at his house

therefore, he does not know about treatment of Ram Singh; Ram

Singh, before the alleged incident, had not absconded in his

presence nor during his presence, Ram Singh had returned to his

house; he was working as labour. He did not stay at one place

permanently; It would be wrong to suggest that on the date of the

incident, he was not present in the village; it would also be wrong

to suggest that due to any police pressure he has deposed; He has

come voluntarily to lend evidence.

44. From the depositions of P.W.-1 Naune Raja, P.W.-2 Narendra

Singh, P.W.-3 Govind Das, it is reflected that at the time of

incident none of these witnesses were present at the place of

occurrence. The incident has admittedly been committed by the

accused. All these witnesses had reached at the spot after the

deceased having been killed. However, there is minor discrepancies

in evidence of P.W.-1 to P.W.-3 in the face of admission of

incident by accused in his statement under Section 313 Cr.P.C.

45. P.W.-1 to P.W.-3 have also not been confronted on behalf of

the accused to the effect that Ram Singh had not axed the

deceased to death. In this case, killing of the deceased by accused

by the assault of axe is admitted to him.

46. It is a defence of the accused that at the time of the

commission of the incident he was in the state of mental disorder.

On behalf of the accused, the plea of insanity, at the time of

commission of crime, has been setup, therefore, onus to prove

insanity at the the time of commission of the crime lies on him.

47. To ascertain whether accused was suffering from insanity at

the time of commission of offence, his previous behaviour,

behaviour at the time of incident and just thereafter has to be

evaluated/examined.

48. Learned trial Court has concluded that the accused Ram

Singh was not suffering from mental disorder at the time of

commission of incident and thus he was not found incapable of

knowing the nature of his act or that he was doing what either

was wrong or contrary to law. This finding of the learned trial

court in respect of the mental state of the accused at the time of

the commission of the incident, is under challenge in the present

appeal.

49. On behalf of the accused D.W.-1 Dr. Rajiv jain, in his cross

examination on 29.07.2011, has stated that on 29.01.2000, at

about 12 p.m. he had conducted EEG (Electroencephalogram)

(Mental examination) of Ram Singh at his Clinic Mahabir

psychiatrist Center, at Lalitpur, and he had diagnosed him as

"normal".

50. D.W.-1, Rajeev Jain, in sequence of his evidence has stated

that the family members of Ram Singh had informed him about

the symptoms and accused on the basis of narration of symptoms

he (DW-1) was of opinion that he could be afflicted with disease

mainly ''Mania' and in his view the said illness may be persisting

since last two years. In this disease, symptoms appear suddenly

and after some time they are disappeared. However, in EEG

examination of the patient, any swelling etc was not found in the

brain of the accused. Other symptoms of disease ''Mania' are

excessive anger, staying awake day in and day out, to run, not to

have meal punctually, non maintenance of hygiene, intermittently

to take medicine causing it recurrence and also doing abnormal

activities. All these symptoms were also having been told to him

(D.W.-1 Dr. Rajiv Jain) by the members of the family of the

accused.

51. D.W.-1 Dr. Rajeev Jain, has further stated, in his occular

evidence that at the time of examination of patient, in view of the

symptoms of patient he had opined that accused was afflicted

with chronicle disease. This illness is bound to recur. The main

reason for the illness to recur in future could be due to non

taking of medicine regularly. If, medicines are not taken

punctually, then there is possibility of its aggravation and the said

illness may turn to psychosis in humans.

52. It is also stated in the testimony of D.W. 1, Dr. Rajeev Jain,

that ''Chronical disease' may reappear after few years and the

symptoms of the patient may also be aggravated. If a patient is so

inflicted, he may not be able to identify a person and on

aggravation, such a person can also assault.

53. Dr. Jain-DW-1, has proved EEG report, paper no. 111 Kha,

and also EEG book 112 Kha, as Exhibit Kha-1 and Exhibit Kha-2.

He has further stated that the papers have been signed by him. He

has clarified that EEC report Exhibit Ka-1, is based on the basis of

EEC book Exhibit Ka-2.

54. D.W.-1, Dr. Rajiv Jain, in his cross examination has stated

that he had privately practised in Lalitpur from the year 1994 to

January, 2010; in his clinic he has rendered his services until

2005; name of the persons, who brought accused Ram Singh is not

mentioned in his report. Symptoms of patient were told by the

family members of the accused and few symptoms were found on

the basis of his examination. He had delivered all the treatment

papers to the patient and he does not remember as to how many

times patient Ram Singh had come to his clinic for his treatment.

55. He has next stated that at the time of examination of the

patient, he was found normal. Such patients are advised to take

continuous treatment for 2-3 years. He has also expressed his

inability to recall as to how long Ram Singh had come at his clinic

for his treatment. At the instance of the family members of the

patient he had recorded the name accordingly. Normally he does

not identity his patients if they again appear before him, therefore,

he cannot say that the accused, who was present in the Court, was

Ram Singh or not. It would be wrong to suggest that he had not

treated Ram Singh and he had prepared a false medical report of

the accused at his instance.

56. From the evidence of D.W.-1 Dr. Rajiv Jain, it is reflected

that he had examined Ram Singh at his clinic, on 29.11.2000 at 12

noon and on his examination based on the EEG, he was found

normal.

57. Having regard to his remaining evidence, it is academic in

nature, because of the fact that he had expressed his opinion about

the disease on the narration of symptoms as having been told to

him by the family members of the accused. D.W.-1, Dr. Rajiv Jain

has expressed his opinion in the given circumstances. However,

upon examination of the accused, he had found him mentally

normal. As such, the testimony of Dr. Rajiv Jain, does not help

the accused in his plea of insanity. Dr. Jain, has also expressed his

inability to remember how many times accused had visited his

clinic for his treatment. Further, Dr. Jain was consulted on

29.21/2000, whereas, incident is stated to have occurred on

22.03.2007.

58. In the report 111-Kha, Dr. Rajiv Jain, Neuro Psychiatrist has

also conclusively opined that EEG of Ram Singh was within normal

limits.

59. Accused vide O.P.D. No. 17704 dated 16.11.2007, on his

(Ram Singh) reference to ascertain his mental status examination,

no history regarding his illness was available with the Doctor

concerned, therefore, Doctor vide his report has stated, in paper

No. 11 Kha, that it was not possible for him to arrive at any

conclusion regarding the mental status of Ram Singh.

60. Doctor advised accused Ram Singh, that he would be put

under observation to ascertain his mental status for at least 14

days. He had referred Ram Singh to mental hospital, Varanasi for

further treatment.

61. Shri Amrendra Kumar, Medical Officer/ Psychiatrist, in

mental hospital, Banaras, in compliance of Court order dated

11.12.2007, examined Ram Singh; during admission in the hospital

on 17.12.2007 and 02.01.2008, medical officer observed that he

suffered from ''unspecified, Non Organic Pshchotic Disorder (F-29).'

Ram Singh was medically examined on 17.11.2007 and 201.2000,

whereas, incident had occurred on 20.03.2007.

62. The Medical Officer, vide report dated 02.01.2008, paper no.

16 Kha/2 one column and B-pertaining to other facts about the

insanity, communicated to him by other medical officer did not

find anything "significant".

63. Director and Chief Superintending Medical Hospital Varanasi,

vide letter dated 28.02.2008, addressed to the District and Session

Judge, Lalitpur, who had conducted the trial of the accused, stated

that in compliance of his (District and Sessions Judge, Lalitpur),

letter no. 6 dated 22.01.2008, prisoner-accused's mental status was

examined by Shri Amrendra Kumar, Medical Officer/ Psychiatrist,

in mental hospital, Banaras, and stated that his mental condition

found was better; he took his meal and also slept; he was

maintaining his hygiene and also he had complied the directions;

accused was giving most of the right answers to the questions put

to him; he often smiled; mumbled without reason. Ram Singh, vide

letter dated 19 Kha, dated 28.02.2008, was not found fully

healthy. It was averred in the letter that as per the advice of

medical officer/ psychiatrist he was being treated.

64. Director and Chief Superintendent Medical Hospital Varanasi,

vide letter No. 2008/507/Ram Singh/dated March 15th 2008, form

no. 21 Kha/ to Jail Superintendent Officer Prison, Lalitpur, was

informed about the treatment, better condition of Ram Singh; he

was being treated for his illness and regarding his fitness his

matter would be discussed in the forthcoming quarterly meeting of

the Board.

65. Director and Chief Superintendent Mental Hospital, Varanasi,

vide letter 2008/September 24/08, regarding mental state of

prisoner Ram Singh, Superintendent District Jail, Lalitpur, was

informed that in the visitors Board meeting dated 12.09.2008, Ram

Singh was declared mentally unhealthy and it was also advised to

continue his (Ram Singh's) treatment.

66. Chief Medical Superintendent, Mental Hospital, Varanasi, vide

his report no. 2009 dated 26.02.2009, paper no. 38 Kha to learned

trial Court Judge, Lalitpur, with regard to mental status of Ram

Singh, in connection with his trial in the instant case, it was

reported that in the half yearly meeting of visitors Board, held on

17.02.2009, Ram Singh, was declared mentally healthy and Ram

Singh was also recommended to be transferred from the hospital to

Jail concerned.

67. There is also treatment card dated 15.03.2009 of accused by

Dr. Shri Amrendra Kumar, Medical Officer/ Psychiatrist, who had

prescribed two tablets and another capsule for Ram Singh, to be

continued for at least three months and to be stopped on the

advise of a Psychiatrist.

68. Alleged incident is said to have occurred on 22.03.2007,

whereas, other medical reports, regarding medical status of accused

pertains, between the period 16.11.2007 to 17.02.2009. It is also

evident from the above referred medical reports that after the

alleged incident dated 22.03.2007, accused for his mental illness

was treated after the lapse of about seven and half months.

However, he was reported vide paper no. 111 Kha, Exhibit Kha-1,

on 29.01.2000, within the normal limits of his mental condition.

69. P.W.-1, Naune Raja, in his cross examination, with regard to

mental status of the accused before the alleged incident, has stated

that one day before the incident, the accused was mentally fit he

was suffering from mental illness and he occassionly had fits and

during fits, he would sit in isolation and he would not take his

meal regularly and also upon persuation he would not have meal;

he would eat at will but he did not stay hungry for a couple of

days. During illness his eyes would turn red; he would flee from

the house, but since 5-6 years he had not fled from the house. He

had fled about 10 years earlier from the house and had returned

on his own. Though attempted to trace him, by his father and

family members was made but they did not come to know about

his whereabouts. Ram Singh had fled from his house five years

before the incident. Accused was married to the daughter of Brijraj

Singh. Accused at the time of his marriage was not mentally ill

but at that time also he would suffer from fits.

70. P.W.-1, Naune Raja, has also further stated that he has no

dispute with accused with regard to property, however, due to the

illness of the accused, he did not meet him; he and accused are

living in one house and share common courtyard; there is same

main gate to their house; he was not on bad terms with accused.

He would not abuse him or his wife nor he (Ram Singh) had ever

beaten his wife.

71. P.W.-2, Narendra Singh, has turned hostile. He, in his cross

examination done on behalf of the accused has stated that Ram

Singh after marriage had absconded 2-3 times and he went missing

for a year; his family members on search found him near a temple

in shabby condition. He was brought back to the house in

disturbed mental state, he would not have his meal regularly.

72. P.W.-2 Narendra Singh, is not family member of the accused.

He lives at half a kilometre distance from house of the accused.

Deposition of P.W.-2 that Ram Singh after his marriage had

absconded 2-3 times and upon search by his family members, he

was found near the temple has not been supported by the P.W.-1

Naune Raja. In this connection, Naune Raja, has stated that

accused had absconded 10 years before the day of his deposition

before the Court (i.e. 28.07.2000) and had returned of his own

after lapse of one year; he was not traced by his father. As such,

statement of P.W.-2 Narendra Singh, is inconsistent with the

evidence of P.W.-1 Naune Raja. P.W.-1 Naune Raja, has

categorically stated in his statement that accused Ram Singh after

his marriage had fits and therefore, he was treated by Dr. Rajiv

Jain at his Clinic, Lalitpur, and also at Gwalior, by Dr. Malhotra.

Accused went there along with his father and uncle; his father had

incurred the expenses of his treatment.

73. P.W.-1 Naune Raja, has expressed his ignorance about the

treatment of Ram Singh's mental illness at Banaras, during his

incarceration in jail.

74. P.W.-2 Narendra Singh, who turned hostile has also stated in

his testimony that accused was treated at Lalitpur and Gwalior.

75. P.W.-3, Govind Das, has said that Ram Singh for his mental

illness was treated at Gwalior or not, was not known to him. He

also does not know whether Ram Singh suffered fits or not.

However, before the incident Ram Singh had not gone mad and

before the incident Ram Singh had neither absconded nor returned

to this house in his presence.

76. P.W.-3, Govind Das has categorically stated that at the time

of incident he was staying in the village but before the incident,

he had gone to Jhansi to do labour work. He does not work as

labour at any permanent place. P.W.-3-Govind Das, before the

alleged incident had not stayed in the village and had remained

out of the village to earn his livelihood, therefore, it appears that

he was not knowing about the mental illness of the accused before

the occurrence. It is clear, that there is evidence that accused Ram

Singh, soon before the incident was mentally sound.

77. It is admitted to P.W.-1 Naune Raja, that accused was treated

at Lalitpur, and Gwalior by Dr. Malhotra, but there is no

documentary evidence on record about the treatment of the

accused at Gwalior. However, regarding the treatment of accused

at Lalitpur, Jhansi and Varansi, documentary evidence is on

record.

78. Accused Ram Singh, was treated at Varanasi, for his mental

illness, during his incarceration from 2007-2009, he was also

treated for his mental illness at Dr. Rajiv Jain's Clinic at Lalitpur.

79. Documentary evidence with regard to the treatment of mental

illness of the accused at Jhansi, Lalitpur and Varanasi is also not

pertaining to soon after the incident, as such, it is found that soon

before and soon after the incident, accused was not mentally

suffering to such an extent that he could be said to be incapable

to know about the nature and consequences of his act.

80. It is also reflected from the appraisal of the oral evidence of

the witnesses that the accused Ram Singh at the time of incident

had emerged in public view from his house and was seen to have

weilding blood stained axe and also his cloths were stained with

blood. He had tried to escape, but he was caught hold by the

witnesses, it has come in evidence that at the time of being

caught, his eyes were turn red and he was behaving wildly.

81. It appears from the conduct of the accused that just after the

incident, he to screen himself from legal punishment, knowing that

he has committed an offence, has it not been so, he would not

have tried to escape from the place of occurrence with weapon of

crime.

82. From the forgoing discussion it is evident that there is no

documentary evidence regrading the treatment of mental illness of

the appellant, before or soon after the incident. However, it had

come in the evidence that occasionaly his behaviour has becomes

wild. P.W.-1 Naune Raja, who is the elder brother of the applicant

and also permanently resides in the same courtyard of their house

is the best person to know about the behaviour of the accused,

and also about his mental illness. He has deposed that since past 5

years of the occurrence, Ram Singh did not have fits. However, he

has also admitted in his evidence that during the said period,

accused had intermittently fits. But, there is no evidence with

regard to the duration of the fits. P.W.-1 Naune Raja, has

categorically stated in his testimony that before the incident the

accused was normal. It also transpires from above discussion that

in 2007 he had contacted Dr. Rajeev Jain at his Clinic at Lalitpur,

who had diagnosed him normal. Thereafter, during his

incarceration in jail, and during treatment, he was found unhealthy

but after treatment he became normal.

83. Dr. Rajeev Jain, has also stated in his evidence that he was

not fully sure whether at the time of the alleged incident accused

has had fits.

84. In our opinion, Ram Singh has had fits but it cannot be

construed that he was suffering from such mental illness at the

time of incident that he could be assumed to be incapable to know

the nature of his act at the time of incident.

85. It is also transpires from the above analysis of the evidence

on record that there is no such evidence to believe that soon

before the incident, or at the time of incident or soon after the

incident, magnitude of his mental illness was such whereunder he

could be accepted to be incapacitated to understand the nature of

his act.

86. Insanity is solely a legal and sociological concept, has no

technical meaning in law or in medicine and does not connote any

definite medical entity. Insanity is seen to be a social inadequacy

and medically it takes the form of a mental disease. In other

words, insanity implies a degree of mental disturbance so menacing

and so disabling that the person may be considered from the legal

point of view to be immune from certain responsibilities, may

disallow him certain privileges that may require a degree of

competence such as a decision to marry, make business contracts

or manage property but may be enough criteria for compulsory

hospitalisation. Another term, which is often used but not defined

is unsoundness of mind and is used as a synonym with other terms

such as insanity, lunacy, madness or mental derangement or

disordered state of mind due to which an individual loses the

power of regulating his actions and conduct according to the rules

of the society to which he belongs.

87. Reasons may be of several types. In our view, the accused

may be occasionally in depressive phase. In such phase a patient

may look tired and self concerned. Sadness of mood reflects in

posture, movements and facial expressions. There is diminished

capacity for normal affective response and the past, present and

future look dark and gloomy. Suicide or suicidal attempt is often

the first and the last symptom of depressive illness. Suicide is well

planned and is of great danger to the patient. In the instant case,

there is no evidence on record to show that the accused has ever

tried to commit suicide or suicidal attempt, therefore, in typical

cases , there is early morning wakening and sleep is not

freshening. This is associated with loss of appetite and libido. In a

reactive depression there is some external event in the

environment.

88. Author ''Jaisingh P Modi' in his text ''Medical Jurisprudence

and Toxicology' had defined ''Epileptic Psychosis' as:

" Epilepsy usually occurs from early infancy, though it may occur at any

period of life. Individuals, who have had epileptic fits for years, do not

necessarily show any mental aberration, but quite a few of them suffer from

mental deterioration. Such patients are peevish, impulsive and suspicious and

are easily provoked to anger on the slightest cause.

The disease is generally characterised by short transitory fits of uncontrollable

mania followed by complete recovery. The attacks, however, become more

frequent. There is a general impairment of the mental faculties with the loss

memory and self control.

Epileptic psychosis is that which is associated with epileptic fits. This may

occur before or after the fits, or may replace them, and is known as preepileptic,

post epileptic and masked or psychic phases'.

Feigned Mental Ill Health has also been defined as follows:

There is always some motive for feigning mental ill health. For instance, a

criminal pretends mental ill-health to escape sentence of death or a prolonged

term of imprisonment for a very grave offence, such as murder, especially

when he is placed on trial."

89. The detection of feigned mental ill-health is one of the

responsible duties of a medical officer. Ordinarily, it is easy to

detect the fraud, but at times it becomes very difficult. An

individual should be detained under observation, before a definite

opinion is given. It should be remembered that such person cannot

be kept under observation for more than 10 days in the first

instance but with the permission of the Court he may be detained

for further period of 10 days up to a maximum of 30 days. During

this period, the medical officer has to watch him and make a

careful note of all the symptoms exhibited by him.

90. In view of the above discussion, we have seen that there is

no medical evidence on record to show that before or soon after

the incident, accused was suffering from Psychotic disorder that it

could be assumed that accused was unable to understand the

nature of his act. Further, it has not been proved that the act itself

was result of his mental disorder.

91. Accused has not been able to demonstrate, by means of

evidence, that at the time of incident he was influenced by

mental disorder. It has not come in the evidence that before the

incident he had fits, further there is no evidence that before or

soon after the incident he had suffered fits .

92. Hon'ble Supreme Court in Sherall Walli Mohammad v. State of

Maharashtra, 1972 Cr. LJ 1523 (SC) had held that:

"The law presumes that every person of the age of discretion to be sane

unless the contrary is proved. It would be most dangerous to admit the

defence of insanity upon arguments derived merely from the character of the

crime, 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 broke open, would not indicate that he was insane

or, that he did not have the necessary mens rea for the commission of the

offence."

93. Learned trial Court in the impugned judgment and order has

apparised the entire evidence on record, relevant case laws, and

has discussed all the aspects of the case, including, insanity,

therefore, we do not find that the impugned judgment and order is

not based on sound reasons, or principle of law has not been

followed, hence, we have no reason to disagree with the findings

of the learned trial court.

94. In view of above discussion, we are clearly of the view that

Trial Court has rightly found appellant guilty of offences with

which the appellant was charged and prosecution has successfully

proved its case beyond doubt against the appellant, hence, he has

been rightly convicted and sentenced.

95. So far as sentence regarding appellant is concerned, it is

always a difficult task requiring balancing of various

considerations. The question of awarding sentence is a matter of

discretion to be exercised on consideration of circumstances

aggravating and mitigating in the individual case.

96. It is settled legal position that appropriate sentence should be

awarded after giving due consideration to the facts and

circumstances of each case, nature of offence and the manner in

which it was executed or committed. It is obligation of the Court

to constantly remind itself that right of victim, and be it said, on

certain occasions persons aggrieved, as well as, society at large can

be victims, never be marginalised. The measure of punishment

should be proportionate to gravity of offence. Object of sentencing

should be to protect society and to deter the criminal in achieving

above object of law. Further, it is expected that Courts would

operate the sentencing system so as to impose such sentence which

reflects conscience of the society and sentencing process has to be

stern where it should be. The Court will be failing in its duty if

appropriate punishment is not awarded for a crime, which has

been committed not only against individual victim but also against

society to which criminal and victim belong. Punishment to be

awarded for a crime must not be irrelevant but it should conform

to and be consistent with the atrocity and brutality with the crime

has been perpetrated, enormity of crime warranting public

abhorrence and it should 'respond to society's cry for justice

against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and

others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC

731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of

Rajasthan, (1996) 2 SCC 175].

97. Hence, applying the principles laid down by the Hon'ble Apex

Court in the aforenoted judgments and having regard to the

totality of facts and circumstances of case, nature of offence and

the manner in which it was executed or committed, we find that

punishment imposed upon the appellant by Trial Court in

impugned judgment and order is not excessive or exorbitant and

no question arises to interfere in the matter on the point of

punishment imposed upon the accused.

98. In view of the facts and circumstances, impugned judgment

and order dated 28.03.2011, deserves to be affirmed and appeal is

liable to be dismissed.

99. In the result, the Criminal Appeal is dismissed. Impugned

judgment and order dated 28.03.2011 is hereby confirmed/affirmed.

The appellant, who is in jail, shall serve out the sentence awarded

to him by the Trial Court.

100. Copy of this order along with lower Court record be sent to

Court concerned forthwith.

101. A copy of this order be also sent to Appellant through

concerned Jail Superintendent.

Order Date :-22.12.2022

Deepak/

(Syed Waiz Mian,J.) (Suneet Kumar,J.)