Raj Ballabh vs State (Gnct) Delhi
2013 Latest Caselaw 3181 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

         +           Crl. A. 476/2004

                                     Date of Decision: 24th July, 2013


         RAJ BALLABH                                 ..... Appellant
                            Through:    Mr. Manoj Singh, Advocate.

                            versus



         STATE (GNCT) DELHI                         ..... Respondent
                       Through:         Ms. Fizani Husain, APP


CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: SUNITA GUPTA, J.

1. Insanity of the appellant, at the time of commission of offence,

is the main plea that has been urged for reversing the conviction and

sentence in question.

2. The appeal against the conviction and sentence has been filed

by the appellant Raj Bhallabh in Sessions Case No. 83/2003 arising

out of FIR 62/2003 under Section 307, PS Darya Ganj, in which he

has been convicted for offence under Section 307 of the Indian Penal

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Code (for short `IPC‟) and has been sentenced to undergo rigorous

imprisonment for seven years and to pay a fine of Rs.500/-, in default

of payment of fine to further undergo rigorous imprisonment for three

months.

3. The findings of guilt has been returned on the basis of

testimony of PW1, Amit Goyal who unfolded that on 18 th February,

2003, he had gone to Rajghat, Delhi in his car bearing Registration

No. DL-3CK-8662. Sushil Kumar was driving the said car. He

parked the car near bus stand. He alighted the car and was going

towards Shakti Sthala via service lane. When he proceeded ahead up

to a distance of 20 meters, then accused-appellant came there having

a „gandasa‟(DAU) in his hand. He started blowing „gandasa‟ blows

on his head. In order to save himself, he ward off his hand and

sustained injuries on his right hand. Middle finger of his hand was cut

and it was hanging with the help of skin. He raised alarm for help and

his driver Sushil Kumar along with some other persons came for

rescue. On seeing them, the assailant ran towards road on outer side.

The accused was overpowered. Sushil Kumar, driver of Amit Goyal

corroborated the facts narrated by Sh. Amit Goyal. He testified that

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on 18th February, 2003, they reached Rajghat and he parked the car on

one side and Sh. Amit Goyal became busy in his morning walk. At

about 6:20 a.m. he heard his cries for help. He rushed in that direction

and noticed that the accused was wielding blows on the person of

Amit Goyal with „dao‟ Ex.P-1. Amit Goyal sustained injuries over

his head as well as his right hand.

4. Head Constable Ram Singh (PW4) was on patrolling duty from

6.00a.m. to 9.00a.m. at Rajghat on 18th February, 2003. Constable

Prakash Chand (PW5) was on picket duty when he received

information about injuries received by Amit Goyal. He rushed

towards the spot and noted that accused Raj Bhallabh was running

from there having a „gandasa‟ in his hand. The crowd had collected at

the spot. Accused was overpowered and „gandasa‟ was seized from

his possession. His shirt was blood stained, which was taken into

possession. Constable Rohtash (PW12) gave confirmation to the facts

narrated by Constable Prakash Chand.

5. On receipt of DD 6A, Ex.PW-3/A, SI Mahender Singh (PW-13)

went to public gate, Raj Ghat, Delhi along with Constable Johar Singh

(PW10) where Constable Prakash and Constable Rohtash met him.

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They produced accused Raj Ballabh and the weapon of offence „dao‟.

He came to know that injured has already been removed to JPN

Hospital. As such, SI Mahinder Singh went to JPN Hospital and

collected MLC of Amit Goyal, who was opined unfit for statement.

Sushil Kumar met him in the hospital. His statement Ex.PW-7/A was

recorded on the basis of which FIR (carbon copy Ex. PW2/B) was

recorded by HC Anita (PW2). Sketch of „dao‟ was prepared which

was sealed with the seal of MS and was taken into possession vide

memo Ex.PW-7/B. Blood stained shirt of the accused was taken into

possession vide memo Ex.PW-5/C. Trousers of the injured was also

taken into possession vide memo Ex.PW13/B. Two air pistols were

recovered from the possession of accused Raj Ballabh which was also

taken into possession vide memo Ex.PW5/B. Accused was arrested

and his personal search was taken vide memo Ex.PW5/E.

6. Amit Goyal was examined by Dr. Amit Sharma (PW11) who

prepared his MLC, Ex.PW11/A, and opined that injury sustained by

him were grievous in nature.

7. Blood stained shirt of accused and trousers of the victim were

sent to FSL for analysis. Report Ex.PB highlights that there was

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human blood of A-group on the shirt of accused and trousers of the

victim also had the same human blood of A-group. These facts make

it clear that there was blood of the victim over the shirt of the accused.

8. The only plea taken by learned counsel for the appellant is that

there was no motive to commit crime inasmuch as, injured was

stranger to the accused. It is settled law that when the testimony of

eye witness is reliable, cogent and inspire confidence, absence of

motive pales into insignificance. Absolutely no enmity, ill-will or

grudge has been alleged either against Amit Goyal or Sushil Kumar or

the police officials for which reason they will falsely implicate the

appellant in this case. Moreover, the appellant was apprehended at the

spot and the weapon of offence was recovered from his possession.

Not only that, the medical and scientific evidence also substantially

corroborate the ocular testimony of the prosecution witnesses. Under

the circumstances, it was rightly observed by the learned Additional

Sessions Judge that the prosecution had established its case beyond

reasonable doubt against the appellant. The appellant had chosen

head of Amit Goyal for causing injuries and successive blows were

given on his person. In order to save himself, Amit ward off his hand

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and sustained injuries on his right hand which proved to be grievous

and it has come in his testimony that now on account of the injuries

received on his right hand, same has become impaired and he cannot

write anything with his right hand. These circumstances, coupled

with the ocular testimony of Amit Goyal and Sushil Kumar that the

accused has caused injuries on the person of Amit Goyal knowing that

those injuries were likely to cause death of the victim, the appellant

was rightly convicted of the offence under Section 307 IPC and was

sentenced as noted above. The finding of learned Additional Sessions

Judge does not suffer from any infirmity which calls for interference.

9. In fact conviction of the appellant on merits of the case has not

even been challenged during the course of arguments, inasmuch as,

the appellant has already served the sentence imposed upon him.

However, it was emphasised that appellant was suffering from

insanity at the time of alleged offence and, was, thus, entitled to

benefit of general exception contained in Section 84 of IPC.

10. Learned counsel for appellant referred to a literature with

regard to delusional disorder and also relied upon Shrikant Anandrao

Bhosale Vs. State of Maharashtra, 2002 Legal Eagle (SC) 823 and

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Radhey Shyam Vs. State, 2011 Cr.L.J 250 for contending that the

petitioner was suffering from delusional disorder that he was

incarnation of Mahatma Gandhi and always used to believe that

somebody is going to kill him. Under that delusion, the offence may

have been committed. As such, he is entitled to the benefit of Section

84 of IPC and deserves to be acquitted of the offence alleged against

him.

11. Learned Public Prosecutor for the State, on the other hand,

has referred to the answers given by the appellant when his

statement under Section 313 Cr. P.C. was recorded wherein in

pursuance to the specific question, as to whether he had to say

anything else, he replied, "I am innocent. I was sent to mental

hospital by the orders of MM and there I was treated. As such,

prosecution claims that I am an insane person. In such a situation

how it can be claimed that I had committed an offence with

knowledge and intention." It was submitted that the manner of

giving the answer itself is reflective of the fact that the appellant

was not insane and was giving coherent answers. She further

referred to the statement of DW-1 Dr. R.K. Srivastava, who was

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examined by the appellant in his defence who had deposed that the

appellant was admitted in the Institute of Human Behaviour and

Allied Sciences and remained indoor patient till 29th July, 1999.

Again, he was admitted in the aforesaid institute on 13th April, 2001

and remained an indoor patient till 9th July, 2001. Thereafter, he

never visited the hospital. In cross-examination, he deposed that

during his stay in the Institute, a medical board was constituted and

he was found fit to stand trial. It was submitted that the incident has

taken place in the year, 2003. There is nothing to show that on the

date of incident or thereafter, the appellant was suffering from any

delusion. As such, he is not entitled to benefit of Section 84 IPC.

The appeal is bereft of merit and is liable to be dismissed.

12. The defence of insanity is recognized in India by virtue of

Section 84 of the IPC which reads as under:

"Section 84: Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."

13. A bare reading of Section 84 IPC reveals that the mental

status of the accused has to be considered at the time of the doing of

the act complained of. Thus, it would be useless evidence to simply

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prove that the accused suffered from schizophrenia or any other

psychiatric or psychological disorder.

14. The second facet which emerges from a bare reading of

Section 84 IPC is the proof of the fact that by reason of

unsoundness of mind, at the time of commission of the offending

act, the offender was either incapable of knowing the nature of the

act or was incapable of knowing that what he is doing is wrong or

contrary to law.

15. There is a distinction between medical insanity and legal

insanity. From a doctor's point of view a patient of schizophrenia

would be treated as a mentally sick person. But for the purposes of

Section 84 IPC such a person would escape being classified as a

normal person and to be treated insane vis-à-vis the offence only on

proof of the cognitive faculties being impaired at the relevant time

i.e. at the time the crime was committed.

16. Historical evolution of the law pertaining to the defence of

insanity at a criminal trial may be traced to the celebrated decision

reported as R v. Daniel Mc Naughten, 1843 RR 59: 8ER 718 (HL).

The defence of insanity in said case was set up on the evidence that

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the accused suffered from an insane delusion that the Prime

Minister Sir Robert Peel had injured him. Mistaking the deceased

for Sir Robert Peel, the accused killed him by shooting him. The

jury returned the verdict of not guilty on the ground of insanity. The

question of law pertaining to insanity was referred to the House of

Lords. Five questions were posed to the House of Lords, as

enunciated below:

1. What is the law respecting alleged crimes committed by

persons afflicted with insane delusion, in respect of one or more

particular subjects or persons: as, for instance, where at the time

of the commission of the alleged crime, the accused knew he

was acting contrary to law, but did the act complained of with a

view, under the influence of insane delusion, of redressing or

revenging some supposed grievance or injury, or of producing

some supposed public benefit?

2. What are the proper questions to be submitted to the jury,

when a person alleged to be afflicted with insane delusion

respecting one or more particular subjects or persons, is charged

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with the commission of a crime (murder, for example), and

insanity is set up as a defence ?

3. In what terms ought the question. to be left to the jury, as to

the prisoner's state of mind at the time when the act was

committed?

4. If a person under an insane delusion, as to existing facts,

commits an offence in consequence thereof, is he thereby

excused?

5. Can a medical man conversant with the disease of insanity,

who never saw the prisoner previously to the trial, but who was

present during the whole trial and the examination of all the

witnesses, be asked his opinion as to the state of the prisoner's

mind at the time of the commission of the alleged crime, or his

opinion whether the prisoner was conscious at the time of doing

the act, that he was acting. contrary to law, or whether he was

labouring under any and what delusion at the time.

17. Lord Chief Justice Tindal expressed opinion upon the above

said terms of reference as follows:

Opinion upon Question 1

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"...In answer to which question, assuming that your

Lordships' inquiries are confined to those persons who,

labour under such partial delusions only, and are not in other

respects insane, we are of opinion that, notwithstanding the

party accused did the act complained of with a view, under

the influence of insane delusion, of redressing or revenging

some supposed grievance or injury, or of producing some

public benefit, he is nevertheless punishable according to the

nature of the crime committed, if he knew at the time of

committing such crime that he was acting contrary to law; by

which expression we understand your Lordships to mean the

law of the land...."

Opinion upon Question 2 and 3

"...These two questions appear to us to be more conveniently

answered together, we have to submit our opinion to be, that

the jurors ought to be told in all cases that every man is to be

presumed to be sane, and to possess a sufficient degree of

reason to be responsible for his crimes, until the contrary be

proved to their satisfaction; and that to establish a defence on

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the ground of insanity, it must be clearly proved that, at the

time of the committing of the act, the party 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 he was

doing what was wrong. The mode of putting the latter part of

the question to the jury on these occasions has generally

been, whether the accused at the time of doing the act knew

the difference between, right and wrong: which mode, though

rarely; if ever, leading to any mistake with the jury, is not, as

we conceive, so accurate when put. generally and in the

abstract, as when put with reference to the party's knowledge

of right and wrong in respect to the very act with which he is

charged. If the question were to be put as to the knowledge of

the accused solely and exclusively with reference to the law

of the land, it might tend to confound the jury, by inducing

them to believe that an actual knowledge of the law of the

land was essential in order to lead to a conviction; whereas

the law is administered upon the principle that every one

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must be taken conclusively to know it, without proof that he

does know it. 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; and the

usual course therefore has been to leave the question to the

jury, whether the party accused had a sufficient degree of

reason to know that he was doing an act that was wrong: and

this course we think is correct, accompanied with such

observations and explanations as the circumstances of each

particular case may require...."

Opinion on Question 4

"...The answer must of course depend on the nature of the

delusion: but, making the same assumption as we did before,

namely, that he labours under such partial delusion only, and

is not in other respects insane, we think he must be

considered in the same situation as to responsibility as if the

facts with respect to which the delusion exists were real. For

example, if under the influence of his delusion he supposes

another man to be in the act of attempting to take away his

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life, and he kills that man, as he supposes, in self- defence, he

would be exempt from punishment. If his delusion was that

the deceased had inflicted a serious injury to his character and

fortune, and he killed him in revenge for such supposed

injury, he would be liable to punishment...."

Opinion on Question5

"...In answer thereto, we state to your Lordships, that we

think the medical man, under the circumstances supposed,

cannot in strictness be asked his opinion in the terms above

stated, because each of those questions involves the

determination of the truth of the facts deposed to, which it is

for the jury to decide, and the questions are not mere

questions upon a matter of science, in which case such

evidence is admissible. But where the facts are admitted or

not disputed, and the question becomes substantially one of

science only, it may be convenient to allow the question to be

put in that general form, though the same cannot be insisted

on as a matter of right...."

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18. The law afore-noted has come to be known as the Mc

Naughten's Principles. A person laboring under a delusion or a

psychological or a psychiatric ailment would not be entitled to be

acquitted on the ground of insanity unless it is established that at the

time when the crime was committed he was suffering the delusion,

psychological or psychiatric condition and was incapable of

knowing the nature of his act or that he was not knowing that what

he was doing was wrong or contrary to law.

19. The leading decision of the Supreme Court on the aspect of

the defence of insanity is Dayabhai Chhaganbhai Thakker Vs.

State of Gujarat, (1964) 7 SCR 361 where it was held that the

burden to prove that the appellant was of unsound mind and as a

result thereof, he was incapable of knowing the consequences of

his acts, is on the defence under Section 105 of the Indian Evidence

Act. Under the said section, the Court shall presume the absence

of such circumstances. Illustration (a) to Section 105 is as follows:-

"(A) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A."

20. Later, the Court rules thus:

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"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 rebuttal 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."

21. It was further observed:

"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."

22. In the instant case, the appellant did not enter the plea of

insanity at any time when the prosecution witnesses were examined

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and it was only when his statement was recorded under Section 313

Cr. P.C that for the first time, he took this plea and then examined

DW-1 Dr. R.K. Srivastava.

23. There is no evidence pertaining to the conduct of the appellant

prior to and after the crime. Neither his acts or utterances save and

except the witnesses speaking that he used a „dao‟ to assault the

deceased have surfaced. The story of the defence that at the time of

commission of offence, the appellant was not mentally fit to

understand his action, is not believable. Had it been so, as suggested

by the learned counsel for the appellants, then, he would not have

made an attempt to flee towards road on outer side as deposed by the

witnesses. The attempt of the accused/appellant to escape from the

scene of occurrence after arrival of Sushil Kumar and police official

further throws a flood of light on this aspect of the matter that he was

mentally in a fit condition and he was capable to understand what is

wrong and what is right and, therefore, he is not entitled to get the

benefit of Section 84 of the IPC.

24. Even Dr. R.K. Srivastava(DW-1), who had examined the

appellant, has deposed that the appellant was a patient of delusional

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disorder till 9th July, 2001, inasmuch as, according to him, he was

admitted in the Institute of Human Behaviour and Allied Sciences on

22nd December, 1998 and remained as indoor patient till 29 th July,

1999 and, thereafter, he was admitted on 13th April, 2001 and

remained as indoor patient till 9th July, 2001. Thereafter, he never

visited the hospital for either treatment or any advice. The Medical

Board was constituted and he was diagnosed to be a patient of

delusional disorder. Except the delusion on a particular point that he

is incarnation of Mahatma Gandhi, he understands what he is doing

and what is happening around him. In cross-examination, he

reiterated that except the delusion that he is incarnation of Mahatma

Gandhi, he understands each and everything. Even during his stay in

the Institute, a medical board was constituted and he was found fit to

stand trial. Under the circumstances, there is no evidence available on

record to show that after 2001 till the date when incident took place

on 18th November, 2003, the appellant continued to suffer from

delusional disorder or what was his conduct thereafter. Thus, the

evidence pertaining to the mental health of the appellant brought on

record during the trial is insufficient evidence from where it can be

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said that the appellant was insane at the time when he committed the

crime.

25. There is yet another reason to repel the arguments of learned

counsel for the appellant about the unsoundness of mind of the

accused/appellant, inasmuch as, in such cases, a separate chapter

XXV Cr. P.C. is provided where specific provisions have been made

under Section 326 to 339. Had it been a truth that the appellant was

of unsound mind then, the accused/appellant or his counsel ought to

have made an application for deciding the trial by following the

procedure provided for trial of an accused person of unsound mind as

provided in the aforesaid provision of Cr. P.C. No such plea was

taken during the entire trial of the case and only for the first time

when his statement was recorded under Section 313 Cr. P.C., it was

alleged that according to the prosecution he was insane and if that is

so, how could he commit the offence. Even in this statement, there

was no categorical assertion that he was of unsound mind and that

being so, he was not capable of understanding what he was doing

when the act was committed. After this plea was taken in statement

under Section 313 Cr.P.C., he examined a doctor. The learned

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Sessions Judge has rightly rejected the evidence led by the appellant

after analytical discussion of oral and documentary evidence on

record, which do not call for interference.

26. The authorities relied upon by the learned counsel for the

appellant has no application to the facts of the case in hand. In

Radhey Shyam (supra), the appellant was acquitted not on the ground

of insanity but because of the fact that the prosecution had failed to

establish its case beyond reasonable doubt. In Shrikant Anandrao

Bhosale (Supra), the appellant, a police constable killed his wife by

hitting her on her head with a grinding stone. Case history and other

proved medical record showed that the appellant was suffering from

paranoid schizophrenia and was under regular medical treatment.

Within short span after the incident he was taken 25 times to the

hospital for treatment. Even after killing his wife, there was no

attempt to hide or run away. Thus, from the circumstances, it was

inferred that he was under a delusion at the relevant time and was

granted benefit of Section 84 of IPC. However, as seen above, the

facts of the present case are entirely different where neither there is

any medical evidence to show as to what was his condition when the

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crime was committed and thereafter. Rather the action of the

appellant in trying to run away after committing the crime itself is

suggestive of the fact that he understood the consequences of his acts.

That being so, he is not entitled to get the benefit of Section 84 of

IPC.

27. The net result is that there is no merit in the appeal, same is

accordingly dismissed.

28. Trial court record be sent back.

SUNITA GUPTA (JUDGE) July 24, 2013 rs

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