Mohd. Sadiq vs State
2009 Latest Caselaw 2722 Del

i.2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : July 20, 2009

+                      CRL.APPEAL NO.561/2001

       MOHD. SADIQ                                    ..... Appellant.
                Through:          Mr.Puneet Mittal, Advocate and
                                  Mr.Manoj Kumar, Advocate.

                       versus

       STATE                                   ..... Respondent
                       Through:   Ms.Richa Kapoor, APP.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

       1. Whether reporters of local papers may be allowed
          to see the judgment?

       2. To be referred to the Reporter or not?                Yes

       3. Whether judgment should be reported in Digest? Yes



PRADEEP NANRAJOG, J. (Oral)

1. The appellant has been produced from jail pursuant

to the production warrants issued vide order dated 21.5.2009.

We have spoken to the appellant. He speaks coherently and

claims that as of now he is perfectly fine but states that this is

due to medical treatment taken by him. He remembers the

unfortunate day when his daughter was murdered being

29.10.1997 and claims that on said day something happened

to him. He says that he felt as if some machine had frozen his

brain. He regrets having murdered his daughter.

2. We had summoned the appellant for the reason

there is tell-tale evidence against him of having chopped off

the head of his daughter and boasted of having done so by

dangling the severed head of his daughter for a public view.

The wife of the appellant has deposed against him. The

appellant had taken a defence of insanity but did not lead any

evidence to prove the same. He claimed to have received

treatment from a doctor at the Mental Hospital, Ranchi and did

summon the record from said hospital, but the witness who

came from the hospital stated in Court that no such record

pertaining to the appellant was available in the hospital. When

she deposed as a witness of the prosecution, the wife of the

appellant denied the suggestions made to her that the

appellant was undergoing treatment for mental sickness.

3. The result is the negation of the defence of insanity

claimed by the appellant.

4. Learned counsel for the appellant very fairly

concedes that in view of the evidence of the neighbour,

Smt.Pushpa PW-1, Smt.Mithilesh PW-4, Smt.Nirmal PW-5 and

Smt.Nuzban PW-2 the wife of the appellant it is apparent that

the appellant brutally chopped off the head of his minor

daughter and hence committed an act which attracts the

offence of murder. The only issue raised by learned counsel is,

whether the necessary mens rea can be attributed to the

appellant. It is urged that so diabolical is the murder that there

from any reasonable person would gather that no sane person

could do the act. In other words, the argument of learned

counsel for the appellant is that this Court should deduce

insanity from the act committed by the appellant.

5. It is settled law that the burden of proving an

exception lies on the person claiming benefit of the exception.

The burden to prove the facts which attract Section 84 of the

Indian Penal Code lies on the accused. As held in the decision

reported as 1964 (7) SCR 361 Dahyabhai Chhaganbhai Thakkar

vs. State of Gujarat, when a plea of legal insanity is set up, the

Court has to consider whether at the time of commission of the

offence the accused, by reason of unsoundness of mind, was

incapable of knowing the nature of the act or that he was doing

what was either wrong or contrary to law. The crucial point of

time for ascertaining the state of mind of the accused is the

time when the offence was committed. Whether the accused

was in such a state of mind as to be entitled to the benefit of

Section 84 of the Indian Penal Code can only be established

from the circumstances which preceded, attended and followed

the crime.

6. Merely because the crime has been committed in a

diabolical manner is no ground wherefrom an inference has to

be drawn that the accused was insane. If this be so, every

offence committed in a diabolical manner would save the skin

of the accused. Extreme anger, hatred or passion often results

in crimes being committed in the most diabolical manner.

7. Finding no evidence to sustain the defence of

insanity, we have no option but to dismiss the appeal.

8. The appeal is dismissed.

9. The appellant who has been produced from custody

is directed to be taken back to the Central Jail, Tihar wherefrom

he was produced.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

JULY 20, 2009 Dharmender