X vs State Of Nct Of Delhi
2017 Latest Caselaw 6558 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 CRL A 1308/2015 & CRL M (B) 8293/2015
       X                                                     ..... Appellant
                         Through:       Mr. Harsh Prabhakar, Advocate
                                        (DHCLSC) with Mr. Salman Hashmi
                                        and Mr. Anirudh Tanwar, Advocates.

                               versus

       STATE OF NCT OF DELHI                              ..... Respondent
                     Through:           Ms. Kusum Dhalla, APP along with
                                        Inspector Prashant Yadav, PS Jagat
                                        Puri
       CORAM:
       JUSTICE S. MURALIDHAR
       JUSTICE I.S. MEHTA

                               JUDGMENT

%                               20.11.2017
Dr. S. Muralidhar, J.:
Introduction

1. This appeal is directed against the impugned judgment dated 10th August 2015 passed by the learned Additional Sessions Judge („ASJ‟), Karkardooma Courts in Sessions Case No.89/11 convicting the Appellant for the offence under Section 302 Indian Penal Code („IPC‟) for committing the murder of his wife and the order on sentence dated 17th August 2015 whereby he was sentenced to undergo imprisonment for life along with a fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year.

2. This Court has in the judgment that follows, accepted the Appellant's plea of defence of insanity under Section 84 IPC and acquitted him of the offence with which he was charged. The Court, therefore, considers appropriate to anonymise the name of the Appellant with 'X' and also refrain from mentioning the names of his family members.

The case of the Prosecution

3. The case of the prosecution is that on 22nd June 2011, at around 8.55 am, telephonic information was received from the East District Control Room under DD No.9-A regarding the death of a lady near Bharat National School. The DD was marked to Sub-Inspector („SI‟) Dinesh (PW-15), who proceeded to the spot along with Constable Kunwar Pal (PW-19). Inspector O.P. Jhakar (PW-23) who was the Investigating Officer (IO) also reached the spot. A PCR van was already present when they reached there. There, the Appellant's elder brother (PW-1) met the IO at the spot. With the help of PW-1, the door of the house, which was on the first floor, was opened. There they found the body of the deceased, the wife of the Appellant, lying in a pool of blood. A blood-stained tawa was found lying in the kitchen. One blood stained knife was lying on the bed and one knife was lying in the kitchen. There was blood spattered in the room and the lobby.

4. The Appellant was also present in the room in an injured condition. He was rushed to the nearby hospital in the PCR van. The statement of PW-1 was recorded. In it he stated that the Appellant, his younger brother, lived in a separate portion of the house on the first and the second floors. The deceased used to do stitching work on the ground floor and was helped by

her son (PW-2). PW-1 stated that the Appellant had not been doing any work for the last 15 years. The Appellant suspected that the deceased was having an illicit relationship in connection with her work. As a result, there used to be frequent quarrels between the Appellant and the deceased.

Evidence at the trial

5. PW-1, in his statement to the police, stated that on the intervening night of 21st/22nd June 2011, the Appellant and the deceased were alone in the house. At around 3 am, PW-1 awoke upon hearing the noise of a quarrel between the Appellant and his wife. According to PW-1, the Appellant was abusing his wife. When PW-1 knocked on the door of the room of his brother and called out to him, he received no reply. The noise of quarrel also subsided. PW-1 noticed that the door of the house had been bolted from inside. He returned to his quarters thinking that it was a routine affair.

6. The next morning, at around 8-8.30 am, PW-1 went to the Appellant's house to enquire about the cause of the quarrel of the previous night. When he called out the Appellant by name, the Appellant came out onto the first floor balcony. PW-1 noticed that the Appellant's clothes were soaked in blood. When PW-1 inquired about his sister-in-law, the Appellant replied that he had killed her in the night and that she was lying inside. PW-1 asked the Appellant to open the door. When he did, PW-1 went inside and found the deceased lying in a pool of blood. There was blood spattered all over the house. PW-1 immediately bolted the door from the outside and called the police from his mobile phone. On the statement of PW-1, FIR No. 297/11 was registered at PS Jagat Puri.

7. Twenty-four prosecution witnesses were examined. In his statement under Section 313 Code of Criminal Procedure („Cr.PC‟), the Appellant stated that it was a false case; that he had a property dispute with PW-1 who tried to raise a wall in the house; and that he had got him falsely implicated in the case.

8. The Appellant filed a written statement under Section 313 (5) Cr PC in which in paragraphs 6, 7 and 8, he stated as under:

"6. That the accused had been suffering mental disease for last 15 years and still under treatment for the same, even in the judicial custody. The accused above named has been suffering insanity.

7. That it is also worth noticing that PW-03 [name withheld] was with the accused as an attendant of the accused when the accused was taking his treatment for mental disease and was administered electric shocks/E-Sitting for 15 days by Dr. Dipender Roy, Senior Psychiatric from the Ram Manohar Lohia Hospital and PW-03 is very much aware about the disease of the applicant / accused.

8. That the accused has been falsely implicated in the present case even though the police officials have been very much aware that accused in an innocent person."

9. Thereafter, three defence witnesses were examined. DW-1, the younger brother of the Appellant inter alia stated that the accused was "a patient of depression since childhood but he has been working regularly." He spoke about the property dispute between PW-1 and the Appellant. DW-2, an elder sister of the Appellant too stated that, "the accused is a patient of depression". She also adverted to the fact that PW-1 wanted to grab the

ancestral property. DW-3, another elder brother of the Appellant stated again that, "the accused is a patient of depression." He too spoke of the property dispute between PW-1 and the Appellant.

Impugned judgment of the trial Court

10. The learned trial Court, by the impugned judgment dated 10th August 2015, found the Appellant guilty of the offence under Section 302 IPC. This being the case of circumstantial evidence, the trial Court outlined three circumstances relied upon by the prosecution to bring home the guilt of the accused as under:

(i) Motive for murder - accused suspected the character of his wife;

(ii) Extra-judicial confession made by the accused.

(iii) Death within the four corners of the house and failure of accused to render any satisfactory explanation.

11. The learned trial Court adverted to the complaint (Ex.PW-2/A) made by the deceased to the police on 19th May 2011, around one month prior to the incident, in which she stated that she apprehended danger to her life from her husband and nephew. She withdrew this complaint on 13 th June 2011 after arriving at a compromise with the Appellant (Ex.PW2/B). The learned trial Court observed that from the testimonies of DW1, DW-2 and DW-3, it was evident that the Appellant was of a quarrelsome nature and he suspected the character of the deceased. The trial Court consequently concluded that the prosecution had been able to prove the motive for the commission of the offence beyond doubt.

12. As regards the second circumstance concerning the extra-judicial confession made by the Appellant, the trial Court referred to the deposition of PW-1 and noticed that he had not been cross-examined with regard to the extra-judicial confession made by the Appellant before him. The trial Court further observed that from the evidence of DW-1 and DW-2 it appeared that there was no pending litigation between the Appellant and PW-1 regarding the property. The said circumstance of the extra-judicial confession made by the Appellant to PW-1 was, therefore, held to be proved.

13. As regards the third circumstance of the death having occurred within the four corners of the room in which the Appellant resided with the deceased, the trial Court observed that although, in his cross-examination, PW-1 accepted that he could not have possibly heard the quarrel between the Appellant and his wife at 3 am and therefore, to that extent, a doubt was created, it did not follow that the entire testimony of PW-1 in all other aspects should be discarded. The trial Court held that the rest of the testimony of PW-1 was trustworthy. Invoking Section 106 of the Indian Evidence Act, 1862 („IEA‟), it was held that the Appellant failed to discharge his burden of giving a cogent explanation as to how the crime was committed since it took place inside his house.

14. The trial Court then turned to the defence of the Appellant that he was of unsound mind at the time of commission of offence and, therefore, entitled to acquittal in terms of Section 84 IPC. The trial Court referred to the admission by PW-1 in his cross-examination that the Appellant had been receiving treatment for his mental ailments from RML Hospital and the

Institute of Human Behaviour and Allied Sciences (IHBAS) as also to the fact that in Ex.PW2/A, the deceased had herself adverted to that aspect. She had stated therein that the Appellant was under treatment at IHBAS for the last five months. However, the Trial Court rejected this plea by observing that the mere fact that the Appellant had been occasionally subject to insane delusions was "per se insufficient to bring his case within the exemption." It was held that the Appellant did not produce any medical record of his treatment which may prove that he was suffering from any major mental ailment due to which he was unable to know the implications of his act. In his statement under Section 313 (5) Cr PC, the Appellant had not stated that he was suffering from any kind of serious mental ailment. Further, DW-1 and DW-2 had merely stated that the accused was a patient of depression. Despite this, he had been doing construction work like flooring and interior furnishing. For these reasons, it was held that the Appellant could not take advantage of Section 84 IPC. Thereafter, by a separate order dated 17th August 2015, the trial Court sentenced the Appellant as noticed hereinbefore.

15. This Court has heard the submissions of Mr. Harsh Prabhakar, learned counsel appearing for the Appellant, having been nominated by the Delhi High Court Legal Services Committee and Ms. Kusum Dhalla, learned APP for the State.

Orders passed by this Court

16. At the time of admission of this appeal on 7th December 2015, this Court had directed the jail authorities to furnish a copy of the record of the

treatment of the Appellant, if any, at IBHAS.

17. When the Appellant was produced before the Court on 4th February 2016, the Superintendent Central Jail No.3 forwarded the medical status report of the Appellant which reads as under:

"This is submitted for your kind information that the above said inmate patient (is) suffering from bipolar affective disorder and he has been under regular follow-up from jail S/R Psychiatrist. At present he complains (about) decreased sleep, low mood and anxiety. All the prescribed medicines are given to him under supervision daily and he is maintaining well on medication. At present his general condition is stable and vitals are stable."

18. The Court in its order dated 4th February 2016 observed that it expected "a more comprehensive report" and called for it from IHBAS. On 28th April 2016, the counsel for the State filed in the Court a whole bunch of papers which included the papers of the treatment received by the Appellant in October and November, 2010 at IHBAS and the OPD Registration Card of RML Hospital, New Delhi containing the details of the consultations the Appellant with a psychiatrist there way back on 11th August 2007. There was also a discharge summary issued by IHBAS on 1st December 2010.

19. On 8th December 2016, an order was passed by this Court suspending the sentence of the Appellant for one month from the date of his release. The Court noted in the said order that the nominal roll dated 19th November 2016 showed that the Appellant had up to that date been in continuous incarceration of 4 years, 4 months and 4 days. The Court also noted that the State had placed on record the copy of the letter dated 20 th November 2016

from Dr. RML Hospital stating that the record which was directed to be produced by the earlier order dated 20th September 2016 was not traceable and further that the record of the patients were maintained only for 3 years. The DDU Hospital informed the Court by a letter dated 29th November 2016 that only an OPD slip of the person admitted to that hospital was available. The Court then directed that it would be in the interest of justice if an effective assessment of the available record were to be undertaken by a competent expert and an opinion obtained as to the mental status of the Appellant as on 22nd June 2011 i.e. when the offence was committed. The Registry was asked to forward the complete medical record to the Medical Superintendent, IHBAS for either examination by himself or by a competent expert. The report was asked to be submitted within 8 weeks.

20. By its communication dated 23rd December 2016, IHBAS informed the Court that it would like to conduct an assessment of the patient‟s mental status. The jail authorities were directed to produce the Appellant in the Psychiatry OPD at IHBAS to enable the latter to give an opinion in terms of the Court order dated 8th December 2016.

21. To enable the Appellant to be produced before the doctors at IBHAS, the Court, by its order dated 24th May 2017, suspended the sentence for a period of 4 weeks.

22. On 17th October 2017, the Court referred to the report dated 9th October 2017 received from IHBAS which stated that the Appellant is fit to stand trial. As regards the question regarding his mental status on the date of commission of the offence, it stated as under:

"3. The Medical Board also opined that mental status at the time of offence cannot be commented upon, on the basis of retrospective history and inadequate medical records pertaining to the time of offence.

It is submitted to the Hon‟ble High Court that patient currently does not need further hospitalization and as per the Medical Board opinion, the patient can be managed on outpatient basis."

23. The Court then directed the jail superintendent to take custody of the Appellant from IHBAS within 3 days.

Circumstances proved against the Appellant

24. In the present case the evidence of PW-1, who was unable to be shaken in his cross-examination, has proved that (i) the death of the Appellant‟s wide was homicidal and (ii) that the Appellant made an extra judicial confession to PW-1 that the Appellant had killed his wife. The Appellant was present next to the dead body in his blood stained clothes. The weapons used were also recovered. PW-1 was also able to prove that at the time of commission of the offence only the Appellant and the deceased were together in their house which was bolted from the inside.

25. With the above overwhelming evidence pointing to the guilt of the accused for the offence under Section 302 IPC, the arguments of Mr. Harsh Prabhakar, learned counsel for the Appellant, centred on the defence of insanity under Section 84 IPC.

The law relating to the defence under Section 84 IPC

26. The Court would like to preface this discussion with an observation that Section 84 IPC underscores that mens rea is an essential element in a crime.

It contemplates a situation where the person committing the crime may not at the time of such commission of crime, be aware of what he is doing. The rationale behind the defence under Section 84 IPC was explained by the Supreme Court in State of Rajasthan v. Shera Ram @ Vishnu Datta (2012) 1 SCC 602 in the following words:

"To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosi nulla voluntus 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 behavior."

27. The expression used in Section 84 IPC is 'unsoundness of mind' and not 'insanity'. This appears to be for good reason since the expression 'insanity' apart from being stigmatic does not account for the varying degrees of unsoundness of the mind, all of which may not qualify for the defence under Section 84 IPC. In Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC 109 the Supreme Court observed:

"Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of 'unsoundness of mind' in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term 'insanity' itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity."

28. In Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495, it was pointed out that "every person who is suffering from mental disease is not ipso facto exempted from criminal liability." in Shrikant Anandrao Bhosale v. State of Maharashtra (2002) 7 SCC 748, which was a case where the defense under Section 84 IPC on the ground of paranoid schizophrenia was accepted, the Supreme Court explained that "it is the totality of the circumstances seen in the light of the evidence on record" which would prove that the Appellant in that case was suffering from the said condition. It was added: "The unsoundness of mind before and after the incident is a relevant fact."

Material on record in support of the defence under Section 84 IPC

29. Turning to the material on record. At least one month prior to the occurrence, on 11th May 2011, the deceased gave a written complaint to the police (Ex.PW2/A) in which she categorically stated that the Appellant was mentally unstable and was undergoing treatment at RML Hospital and IHBAS for the last 15 years. She further stated therein that for the last 5 months, the Appellant was receiving treatment at IHBAS at Shahdara; that he was taking injections; that he kept beating people at home and that there existed an imminent threat that he may harm her and any of the family members. She also adverted to the Appellant having attempted to commit suicide by consuming poison and threatening that she and her son would be responsible for it.

30. No doubt, as spoken to by Head Constable Sanjay Sharma (PW-4), who dealt with the matter, the said complaint (Ex.PW-2/A) was closed pursuant

to a compromise entered into by the deceased with her accused (Ex.PW2/B) on 13th June 2011. However, the complaint (Ex PW-2/A) is significant inasmuch as it was an acknowledgement by the deceased regarding the chronic mental status of the Appellant in close proximity of the occurrence.

31. That the Appellant was receiving treatment for his mental illness has also been spoken to by his elder brother (PW-1), who was the key prosecution witness. In his cross-examination on behalf of the accused, PW- 1 admitted that, the accused "has been suffering from mental ailment since the last about 12 years. It is correct that the accused had undergone treatment from RML Hospital and IHBAS but I do not know whether he was given electronic shock treatment. It is correct that he was also hospitalized at RML Hospital and IHBAS for mental treatment."

32. Ms. Kusum Dhalla, the learned APP, referred to the evidence of PW2, the son of the deceased, who in his cross examination denied the suggestion that his father was "having any mental ailment since the last 10-12 years." He admitted, "My mother once took my father to IHBAS but I do not know for what ailment."

33. However, the above denial by PW2 cannot really be totally determinative of this issue. Apart from the deceased wife (through her written complaint PW-2/A), the elder brother PW-1, the evidence of the three other siblings of the Appellant, DWs 1 to 3 have also confirmed that he "is a patient of depression since childhood".

34. Then we have the written statement of the Appellant himself under

Section 313 (5) Cr PC which has been extracted hereinbefore where he stated that he was receiving treatment at IHBAS and RML Hospital for many years.

35. It has also come in the evidence of Inspector O.P. Jhakar (PW23) that: "It is correct that I had come to know during my investigation that accused got his mental treatment".

Documents relating to the condition of the Appellant

36. Apart from the above oral evidence, the documents now placed on record before this Court support the plea of the Appellant that he has been receiving treatment for mental illness for several years. The OPD card of RML Hospital signed by Dr. Arvind, Senior Psychiatrist on 11th August 2007 shows that the Appellant had been prescribed medicines for his depression.

37. The medical record of IHBAS beginning 25th October 2010 shows that he was suffering from „chronic depression‟. They also show that he was an in-patient at IHBAS. The noting of 15th November 2010, inter alia, referred to "suicidal ideas" and the Appellant giving suicidal threats. Apart from the above symptoms, the follow-up sheet records, "aggressive and abusive behaviour" and "unmanageable at home". It also states that his is a "known case of bipolar effective disorder". The follow-up sheet of 15th November 2010 records, inter alia, that "yesterday at 3 pm they informed, went to railway track... was brought back by some relative." The noting of 24th November 2010 records, "need for hospitalization" and "patient unmanageable at home".

38. The follow-up sheet of 24th November 2010 notes, inter alia, "ideas of helplessness, worthlessness, death wishes for the past ten years; unemployed for ten years." It noted that "there were suicidal attempts". There is a record of IHBAS showing discharge of the patient on 30th November 2010 "against advice".

39. Although the Trial Court did not have the benefit of the medical records which has now been produced before the Court, there was sufficient material in the form of oral depositions and documents (including Ex.PW2/A) pointing to the Appellant being a chronic patient of mental depression.

The role of the IO

40. The IO, despite learning of the fact that the Appellant was suffering mental depression for long, did not probe that angle further. In particular, the records of the hospitals where the Appellant received treatment were not collected; the doctors treating him were not spoken to. If the IO had taken note of the contents of the earlier complaint of the deceased (Ex PW-2/A) he could not have failed to notice that the Appellant was a chronic patient of depression. It appears that the failure to do so resulted in relevant material concerning the mental condition of the Appellant at the time of commission of the offence not being brought on record.

41. In Sidhapal Kamala Yadav v. State of Maharashtra (2009) 1 SCC 124, the Supreme Court quoted from the judgment of the High Court, under appeal before it where, inter alia, while discussing Section 84 IPC, it was held as under:

"The onus of providing unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors."

The role of the Court

42. There was an opportunity even during the trial for this angle to be examined. Given that in the testimonies and documents referred to there was sufficient indication of the treatment received by the Appellant in the period immediately preceding the occurrence, the Court had the option of getting the treatment records requisitioned through the IO and calling as court witnesses experts to examine the said treatment records. In fact this is what this court did when the appeal was first heard by it.

43. In Radhey Shyam v. State ILR 2010 Supp. (2) Delhi 475, this Court reflected on this aspect by observing as under:

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

39. Thus, with reference to the past medical evidence or the medical history of the accused as the backdrop, the duty of the Court is to evaluate the conduct of the accused before, at the time of and soon after the crime and then return a finding of fact, whether the accused was of such unsound mind that by reason of unsoundness he was incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law."

xxx

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

44. There are certain other circumstances which point to the possibility of the Appellant being driven to commit the crime at a time when he was not in complete control of his senses. One is the ghastly manner in which the deceased was put to death. There were 24 injuries on her body caused by the multiple household articles such as an iron tawa and two knives. Yet another factor is that the Appellant chose to remain in the same room with his bloodstained clothes, making no effort to escape or conceal the evidence and rather making an extra-judicial confession to his brother PW-1. It was perhaps reflective of his chronic mental state, which continued even during the pendency of this appeal. The medical professionals at the Tihar jail confirmed to the Court that the Appellant continues to suffer from „bipolar

disorder‟. He continues to receive regular psychiatric treatment for the said condition.

Medical literature

45. Turning to the medical literature specific to bipolar disorder, Modi's Textbook of Medical Jurisprudence and Toxicology (24th Edition), at page 753 defines „Bipolar Disorder‟ as „Manic Depressive Psychosis‟. It describes the affliction thus:

"Bipolar disorder is used for a group of mental illnesses with primary disturbances of affect, from which all other symptoms arise. The affect i.e., the mood varies between extreme poles of cheerfulness and sadness. The illness has a second characteristic of periodicity. The third characteristic is returning to normalcy from attack, without impairment of mental integrity. In practice, one finds that a single attack of a mania or a single attack of depression can occur. It occurs in persons predisposed to mood disturbances."

xxx

"The depressives rarely indulge in petty crimes. A minority may commit altruistic type of homicide. Aggressive impulses are normally inhibited by the psychotic condition. Hypochondrial delusions are often associated with homicidal impulses. Hence, near relatives may be killed in order to prevent them from inheriting or developing some serious disease. The psychotic depressive kills from motive, to his way of thinking, and is inherently good as opposed to the person with paranoid illness, who is motivated by spite and a desire to avenge the imaginary wrong.

Homicidal and suicidal tendencies frequently co-exist in depressives, which stems from hopelessness, futility and despair. They believe that the killing of loved ones followed by self- destruction is the only practical solution."

46. In the Cambridge Handbook of Forensic Psychology edited by Jennifer M. Brown and Elizabeth A. Campbell, (4th Printing 2013), it is inter alia observed that bipolar disorder, previously known as manic depression, has a mean onset age of about 30 and is characterized by mood swings that can range from extreme happiness (mania) to extreme sadness (depression) over a period of days or months. It is further noted that:

"In the depressive phase, symptoms include feeling sad and hopeless, lack of energy, difficulty concentrating, loss of interest in everyday activities, difficulty sleeping, feelings of worthlessness and despair, and suicidal thoughts. In the manic phase, which usually comes after several periods of depression, symptoms may include feeling elated and full of energy, talking very quickly, and feeling self-important with great ideas not known to others, but also being easily distracted, irritated or agitated, not sleeping or eating, and doing things that bring negative consequences, such as over spending and dominating others.

Delusions stemming from these disorders can lead the individuals concerned to become violent, for example if they believe that the lives of their families have become intolerable (depressive phase), or where they believe that no one must stand in the way of their important plans (manic phase). The mental disorder can contribute directly to serious violence, e.g. multiple homicide of loved family members. As with schizophrenia, the precise cause of bipolar disorder is unknown, although it is thought to involve physical, environmental and social factors, with about 10-15% of sufferers nearest relatives also being affected."

47. In an article titled Patients with Affective Disorders admitted to Maximum Secure Care (1999-2003) authored by T. White, a Consultant Forensic Psychiatrist based in Perth, Australia (printed in Med.Sci.Law

(2005) Vol. 45 No.2 p.142), it is noted that:

"The McArthur Violence Risk Assessment Study (Steadman et al., 1998) recently reported that patients with bipolar disorder or major depression were more likely than those with schizophrenia to be violent over the course of a year. Similarly, Swanson et al. (1990) in an early analysis of the National Institute for Mental Health Catchment Area Study, reported an equally strong association for depression, bipolar disorder and schizophrenia with reported violence. In addition, the National Confidential Inquiry into Suicides and Homicides (Appleby, 1999) appeared to demonstrate a stronger relationship between depressive symptoms than positive psychotic symptoms in mentally disordered homicide offenders."

Reasons that weigh with the Court

48. The Court is of the view that in the present case, the defence of the Appellant with reference to Section 84 IPC ought to have been accepted by the trial Court for the reason that there was sufficient relevant material as regards the treatment being received by the Appellant for chronic bipolar disorder which, if fully examined with the help of experts, might have conclusively established such a defence. It is sufficiently clear that the Appellant has been suffering from chronic depression for a long period. There are records to show that he had been receiving treatment at least from 2007 onwards and continuous treatment at IHBAS for a severe condition for five months in 2010, less than six months prior to the occurrence. He attempted suicide less than a month prior to the occurrence.

49. While one might never know what his precise frame of mind on the fateful day was, it is fairly evident that he was suffering from chronic depression throughout. The failure by the investigating agency, and later by

the trial Court, to thoroughly examine the available materials resulted in the Appellant being denied the opportunity to establish his plea of defence of unsoundness of mind under Section 84 IPC. As explained in Sidhapal Kamala Yadav v. State of Maharashtra (supra), the resultant benefit of doubt created must enure to the Appellant.

50. While the endeavour of the criminal justice system is to ensure that no crime goes unpunished, and there may be no doubt as to who committed the crime, the requirement of justice is also for the Court, when faced in a rare case with a plea of the accused under Section 84 IPC, to examine and evaluate "the conduct of the accused before, at the time of and soon after the crime" and determine whether by reason of unsoundness the accused was "incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law."

51. For all of the aforementioned reasons, the impugned judgment of the trial Court dated 10th August 2015 convicting the Appellant for the offence under Section 302 and the order on sentence dated 17th August 2015 are hereby set aside. The Appellant is acquitted of the offence under Section 302 IPC.

Consequential directions

52. In a case as the present one where the plea of unsoundness of mind of the Appellant at the time of commission of the crime is accepted, the needs of justice would be subserved if following his release the Appellant, given his condition, continues to receive treatment till such time he is in a position

to be held responsible for himself. As noted by this Court in its order dated 4th February 2016, the Medical Status report of the Appellant as forwarded by the Superintendent of Tihar Jail noted that Appellant was as of that date "suffering from bipolar affective disorder" and was under regular follow-up with the jail psychiatrist. He continued to complain of "decreased sleep, low mood and anxiety." In its report dated 9th October 2017, the experts at IHBAS have noted that the Appellant "is diagnosed as suffering from Dysthymia with sever depressive episode with lumber sacral radiculopathy." The report notes that he "requires regular treatment but can be managed on outpatient basis." „Dysthymia‟ is defined as „persistent depressive disorder‟.

53. In State of Rajasthan v. Shera Ram @ Vishnu Datta (supra) the Supreme Court affirmed a judgment dated 21st February, 2004 of the Rajasthan High Court acquitting the Respondent therein "primarily on the ground that at the time of incident, he was a person of unsound mind within the meaning of Section 84 IPC." The High Court in that case had directed that the Respondent should continue to receive treatment in an appropriate hospital till he was fully cured of his mental illness. However, in the present case, as is evident from the latest report dated 9th October 2017 of the doctors at IHBAS, although the Appellant is stable and does not require to be hospitalised, he is not „out of the woods‟ and requires regular treatment‟ and periodic follow up. The Appellant will need assistance in this. It could be by anyone interested in the welfare and well-being of the Appellant. Mr. Harsh Prabhakar, learned counsel appearing for the Appellant informs the Court that one of the younger siblings of the Appellant has been visiting him in the jail on a regular basis.

54. The Court, accordingly, issues the following directions:

(i) The Appellant shall be released forthwith, subject to his complying with the requirements of Section 437A Cr PC.

(ii) For the above purpose, the matter will be placed before the trial Court on 27th November 2017.

(iii) Considering the special facts and circumstances of the case as noted hereinbefore, the trial Court will, while ensuring compliance by the Appellant with the requirement of Section 437 A Cr PC, require that the surety provided is of a person (who may or may not be a close relative) who will additionally undertake that the Appellant will go to IHBAS for regular checks and follow up and continue to receive treatment under the close supervision of the mental health professionals there or at some other renowned facility for as long as the said mental health professionals consider necessary.

(iv) The Delhi State Legal Services Authority (DLSA) will extend assistance to the Appellant in regard to the above directions. The Secretary DLSA will depute a panel counsel to be present on behalf of the Appellant before the trial Court on 27th November 2017 for the above purpose.

55. The appeal is allowed in the above terms. The application is disposed of. The Court records its appreciation of the excellent background research, preparation and able presentation of the case by Mr. Harsh Prabhakar, learned Counsel for the DHCLSC and the fair stand of Ms. Kusum Dhalla, learned APP as an officer

of the Court.

56. A certified copy of this order will be delivered by a Special Messenger of the Registry forthwith for compliance to: (i) the trial Court together with the trial Court record; (ii) the Superintendent, Tihar Jail; (iii) the Secretary, DLSA; and (iv) The Medical Superintendent, IHBAS.

S. MURALIDHAR, J.

I.S. MEHTA, J.

NOVEMBER 20, 2017 rd