THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 2nd May, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.40 of 2018
Appellant : Trilochan Kapoor Sharma
versus
Respondent : State of Sikkim
An Appeal under Section 374(2) read with Section 482 of
the Code of Criminal Procedure, 1973 and Section 27 of
the Prevention of Corruption Act, 1988.
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Appearance
Mr. B. Sharma, Senior Advocate with Mr. Rajendra Upreti, Mr. Safal
Sharma, Ms. Puja Singh, Ms. Shreya Sharma, Ms. Roshni Chettri
and Ms. Sweta Karki, Advocates for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar and Mr. Shakil Raj Karki, Assistant Public Prosecutors for
the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Accused/Appellant was charged with a total of
thirteen counts, for offences under Sections 419, 420, 468, 471
and 201 of the Indian Penal Code, 1860, (hereinafter, the "IPC"),
and one count under Section 13(1)(d)(i) of the Prevention of
Corruption Act, 1988, (hereinafter, the "PC" Act). It is alleged that
he defalcated a total sum of ₹ 62,511/- (Rupees sixty two
thousand five hundred and eleven) only, during the period January,
2012 to May, 2012, from the Department of Economics, Statistics,
Monitoring and Evaluation (for short, the "DESM&E"), Government
of Sikkim, where he was serving on deputation as a Deputy
Director (Administration). The Appellant entered a plea of "not
guilty" to the Charges. On conclusion of the trial he was convicted
of all the offences (supra), vide the impugned Judgment, dated 29- Crl.A. No.40 of 2018 2
Trilochan Kapoor Sharma vs. State of Sikkim
09-2018, in Sessions Trial (Vigilance) Case No.01 of 2017, of the
Court of the Special Judge, Prevention of Corruption Act, 1988,
South Sikkim, at Namchi. By the assailed Order on Sentence of
the same date, for the offences under the IPC, he was sentenced to
6 months simple imprisonment under each count, with fine
imposed and default clause of imprisonment. For the offence under
the PC Act, he was sentenced to undergo simple imprisonment for
a period of one year with fine imposed and a default clause of
imprisonment. The sentences of imprisonment were ordered to run
concurrently, setting off the period of imprisonment already
undergone by the Appellant during the investigation and trial.
Aggrieved thereof, he is before this Court.
2. Learned Senior Counsel for the Appellant put forth
multipronged arguments contending firstly that;
(i) During the period when the offence was committed i.e.,
from January, 2012, to May, 2012, the Appellant was suffering
from mental illness and was therefore entitled to the exception
delineated in Section 84 of the IPC. The Learned Trial Court
however failed to extend this benefit by neglecting to invoke the
provision of Section 328 of the Code of Criminal Procedure, 1973,
(for short, the "Cr.P.C."), to consider the mental health of the
Appellant and the circumstances that preceded, attended and
followed the alleged offences. That, Exhibit X1 and Exhibit X2, the
medical papers pertaining to the Appellant issued by D.W.1, Dr.
Chandra Shekhar Sharma, Head of the Department, Psychiatry, at
STNM Hospital, Gangtok, who treated him for mental illness from
2008 and referred him to National Institute of Mental Health and
Neurosciences (hereinafter, the "NIMHANS"), Bangalore and one
Dr. P. T. Shivakumar, NIMHANS, who evaluated the Appellant from Crl.A. No.40 of 2018 3 Trilochan Kapoor Sharma vs. State of Sikkim
02-08-2012 to 29-08-2012 and diagnosed him with schizophrenia
and the fact that the Appellant has been continuously suffering
from mental illness since 2008 was ignored by the Learned Trial
Court. The evidence of D.W.1 clarifies that schizoaffective disorder
may continue for months together depending upon the treatment
however, baseline psychotic symptoms continue. The evidence of
D.W.1 is supported by the evidence of D.W.2, the Appellant‟s wife,
with regard to his mental illness and hospitalization at the
Government Hospital in Gangtok and thereafter in NIMHANS,
Bangalore. D.W.3 corroborated the evidence of both D.Ws 1 and 2
by stating that the Appellant was ill since 2008 and had been
admitted to the Psychiatric ward of the STNM Hospital. That, to
prove insanity the Appellant is to discharge his burden by
establishing a "preponderance of probabilities" and "not beyond a
reasonable doubt". To buttress his submissions, reliance was
placed on the decisions of the Supreme Court in Shrikant Ananda
Rao Bhonsle vs. State of Maharashtra1, Dahyabhai Chhaganbhai Thakkar
vs. State of Gujarat2, Bapu @ Gajraj Singh vs. State of Rajasthan3,
Surendra Mishra vs. State of Jharkhand4, Hari Singh Gond vs. State of
Madhya5, Devidas Loka Rathod vs. State of Maharashtra6. Reference
was also made to Chapter 36 of Modi, A Textbook of Medical
Jurisprudence and Toxicology, 25th Edition, 2016, on mental illness
and that the gamut of evidence on record points to the mental
unsoundness of the Appellant, which entitles him to the exemption
laid down in Section 84 of the IPC.
(ii) In the next leg of his argument, drawing the attention
of this Court to Exhibit 161, „Sanction‟ to Prosecute the Appellant, it 1 (2002) 7 SCC 748 2 AIR 1964 SC 1563 3 (2007) 8 SCC 66 4 (2011) 11 SCC 495 5 (2008) 16 SCC 109 6 (2018) 7 SCC 718 Crl.A. No.40 of 2018 4 Trilochan Kapoor Sharma vs. State of Sikkim
was argued that sanction had not been obtained from the
competent authority as required by law and procedure. That,
P.W.49, the Investigating Officer (I.O.) submitted the Charge-
Sheet on 19-08-2014, whereas the sanction for Prosecution is
dated 14-06-2014, which is revelatory of the circumstance that the
sanctioning authority was not seized of the matter in its entirety to
enable application of mind. Besides, the sanction was vitiated
having been accorded by the Additional Secretary, (Confidential),
Home Department, Government of Sikkim, who was incompetent
to grant such sanction lacking the authority to remove the
Appellant from service. Reliance was placed on Bhagwan Jagannath
Markad and Others vs. State of Maharashtra7 and C.B.I vs. Ashok Kumar
Aggarwal . That, the Learned Trial Court eventually failed to 8
pronounce a conclusion on the validity of the sanction.
(iii) The third aspect of the arguments raised was that
during the course of investigation, the I.O. required the Appellant
and one Priya Sharma to give their specimen handwriting for
expert examination and opinion, without the prior permission of the
Court. That, although the Learned Trial Court concluded that the
opinion of the Handwriting Expert, P.W.42, is not conclusive proof,
it was urged that P.W.42 ought to have explained to the Court all
details for arriving at his conclusion, for which reliance was placed
on Murari Lal vs. State of Madhya Pradesh9.
(iv) The fourth argument raised was that the apology letter,
Exhibit 17, dated 23-05-2012, attributed to the Appellant, was in
fact executed when he was not mentally stable and it was prepared
by P.W.7. That, the other officers and P.W.8, the Head of the
7 (2016) 10 SCC 537 8 AIR 2014 SC 827 9 (1980) 1 SCC 704 Crl.A. No.40 of 2018 5 Trilochan Kapoor Sharma vs. State of Sikkim
Department of the Appellant‟s workplace pressurized the Appellant
to submit the apology letter.
(v) Advancing the fifth argument, it was contended that
the Appellant was not singly responsible for the offence as the
embezzled sum was approved by the Accounts Section of the
Department, revealing the complicity of P.Ws 7, 14 and 15 in the
offences, but the Appellant alone was foisted with the crime. That,
during the course of investigation, the Appellant reimbursed a sum
of ₹ 66,834/- (Rupees sixty six thousand eight hundred and thirty
four) only, to make good the alleged embezzled amount, although
the Appellant had not signed on any of the receipts acknowledging
receipt of the defalcated amount of money.
(vi) It was next contended that not only were there
discrepancies in the seizure of documents but the Learned Trial
Court, relied on photocopies of documents which are inadmissible
in evidence.
(vii) The ultimate argument advanced was the plea that,
should this Court be inclined to agree with the findings of the
Learned Trial Court, then the Sentence of imprisonment imposed
under each of the Sections of law, may be reduced to one month
each and the Sentences be ordered to run concurrently, in
consideration of the present deteriorating mental health status of
the Appellant.
3. Repudiating vehemently the arguments placed by the
Learned Senior Counsel for the Appellant, Learned Additional Public
Prosecutor for the State-Respondent submitted that, there are no
medical documents to establish, that the Appellant was suffering
from unsoundness of mind during the period of offence i.e.,
January, 2012 to May, 2012, neither does the evidence of D.W.2 Crl.A. No.40 of 2018 6 Trilochan Kapoor Sharma vs. State of Sikkim
substantiate this ground. Relying on State of Sikkim vs. Rupesh
Manger (Thapa)10 it was urged that the requirements of insanity
have been elucidated therein and the Appellant has failed to fulfill
the criteria. That apart, Exhibit 17, the apology letter was issued
on 23-05-2012, as the Appellant admitted therein to having
committed the said offence, thereby ruling out the excuse of
mental illness. That, the allegation made against P.W.8 pertaining
to duress on the Appellant to submit the apology letter is dispelled
by the evidence of P.W.5. The Appellant on having admitted his
guilt before P.W.8 and others voluntarily submitted the apology
letter. P.W.16 too heard the Appellant voluntarily admitting to
P.W.8 about having cheated the Department, submitting false
transfer Orders, false relieving Order, false last pay certificate
pertaining to Priya Sharma and Ranjit Rai. P.Ws 7, 14 and 15,
officials of the Department have also established the fact of
embezzlement by the Appellant. Inviting the attention of this Court
to Gokak Patel Volkart Ltd. vs. Dundayya Gurushiddaiah Hiremath and
Others11, it was contended that the offence was a continuing
offence, planned and executed by the Appellant over a period of
time, from where he reaped financial benefits, hence the plea of
mental unsoundness is obnoxious. That, the evidence of D.W.2, the
Appellant‟s wife, in fact supports the Prosecution version, having
deposed that her husband regularly attended office in a normal
condition prior to registration of the case and during that period he
was promoted from Administrative Officer to Deputy Director.
(i) On the point of sanction it was countered that the
competence of the sanctioning authority was never assailed at the
10 Crl.A. 08 of 2020, High Court of Sikkim, decided on 24-08-2022. 11 (1991) 2 SCC 141 Crl.A. No.40 of 2018 7 Trilochan Kapoor Sharma vs. State of Sikkim
trial nor was the witness cross-examined on this aspect, hence, this
question cannot be raised belatedly in Appeal.
(ii) That, the Learned Trial Court has given reasons for not
depending on the handwriting expert‟s evidence hence no error
emanates therein. In any event, documentary evidence on record
and evidence of the Prosecution witnesses have established the
complicity of the Appellant in offence. The question of the other
officers of DESM&E being in league with the Appellant to commit
the offence is a feeble attempt to rope in the innocent and protect
himself. The guilt of the Appellant is evident not only from Exhibit
17 (supra), but also from his voluntary reimbursement of a sum of
₹ 66,834/- (Rupees sixty six thousand eight hundred and thirty
four) only, in cash, to the State Treasury, being the approximate
embezzled amount. Consequently, in light of the arguments
advanced, the impugned Judgment and Order on Sentence, be
upheld.
4. The questions that fall for consideration before this
Court are;
(i) Whether the Appellant is entitled to the benefit of Section 84 of the Cr.P.C.?
(ii) Whether the Sanction for Prosecution is valid?
(iii) Whether the Appellant had committed the offences as charged?
(i) Before dealing with the afore framed questions, the
facts are briefly being narrated herein, to comprehend the matter
in its entirety. The Prosecution case is that the Vigilance
Department, Government of Sikkim, on receipt of a reference from
P.W.8, Director General-cum-Secretary, DESM&E, Government of
Sikkim, alleging that the Appellant on the strength of forged and
fabricated documents created false entities, purporting to be one Crl.A. No.40 of 2018 8 Trilochan Kapoor Sharma vs. State of Sikkim
Priya Sharma, LDC and one Ranjit Rai, MR Driver, fraudulently
prepared salary bills in their names and misappropriated the
money. A preliminary enquiry was conducted by P.W.43 of the
Vigilance Department, which revealed that the DESM&E had
received two transfer Orders sometime in the month of January,
2012. The first one pertaining to one Priya Sharma, LDC, (Exhibit
20), dated 21-01-2012, allegedly issued by Department of
Personnel, Administrative Reforms, Training and Public Grievances
(hereinafter, "DoPART"), indicating her transfer from the Human
Resource Development Department, (hereinafter, the "HRDD"),
District Office, North Sikkim, to DESM&E, Gangtok. A second
Order, dated 16-02-2012 (Exhibit 22), was also received relieving
her from duty in North Sikkim and her last pay certificate, Exhibit
13, dated 11-02-2012, allegedly issued by the HRDD. The transfer
Order pertaining to one Ranjit Rai said to be a driver on the Muster
Rolls of the Health and Family Welfare, Government of Sikkim
(hereinafter, the "Health Department"), (Exhibit 19), dated 16-01-
2012, was alleged to have been issued by the Deputy Director,
transferring him to DESM&E, Gangtok. The Appellant submitted
documents, purporting to be joining Reports in respect of the two
individuals named above Exhibit 21, for Priya Sharma and Exhibit
18, for Ranjit Rai. Thereafter, he arranged for withdrawal of their
salaries, received and misappropriated the salary amounts,
fraudulently drawing a sum of ₹ 62,511/- (Rupees sixty two
thousand five hundred and eleven) only. ₹ 45,186/- (Rupees forty
five thousand one hundred and eighty six) only, was drawn in
respect of Priya Sharma, LDC for three months, (Feburary, 2012 to
April, 2012). ₹ 17,325/- (Rupees seventeen thousand three
hundred and twenty five) only, was drawn in respect of MR Driver, Crl.A. No.40 of 2018 9 Trilochan Kapoor Sharma vs. State of Sikkim
Ranjit Rai, for four months (January, 2012, to April, 2012). No
person by the name of Priya Sharma was ever employed in the
HRDD and the person by the name of Ranjit Rai did not exist in the
Health Department. Hence, all of the documents mentioned above
were found to be fraudulent. When the fraud was detected, the
Appellant was confronted by P.W.8, upon which he submitted,
Exhibit 17, an apology letter admitting to the aforementioned acts
of impropriety. Hence, a criminal case was registered against the
Appellant under Sections 468, 471, 420/477A of the IPC read with
Section 13(1)(d)(ii) of the PC Act and endorsed to P.W.49, Police
Inspector (PI) L.B. Chettri for investigation. Investigation inter alia
revealed that the Appellant was posted on deputation in the
DESM&E office, Gangtok from IRBn, Piplay, West Sikkim, vide
Office Order dated 09-12-2011, as an Administrative Officer from
17-12-2011 to 27-01-2012. He was promoted on 28-01-2012 as
Deputy Director and while in charge of the Administration in the
office, committed the offences as Charged. Based on the
investigation, Charge-Sheet was submitted by P.W.49 against the
Appellant under Sections 420, 468, 471, 416, 419, 201 of the IPC
and under Section 13(2) read with Section 13(1)(d) of the PC Act.
5. The findings of the Learned Trial Court in the impugned
Judgment are being briefly examined. The Learned Trial Court
dealt firstly with the question as to whether the Accused was a
public servant during the relevant time and concluded that he was,
in light of the Prosecution evidence and the fact being undisputed
by the Appellant. The second question dealt with by the Learned
Trial Court was whether the Accused being the Deputy Director,
DESM&E, had on the strength of forged and fabricated documents,
created false entities of Priya Sharma as LDC and Ranjit Rai as Crl.A. No.40 of 2018 10 Trilochan Kapoor Sharma vs. State of Sikkim
Muster Roll (MR) Driver and fraudulently prepared, drawn their
salaries and misappropriated the same. The Court found that the
enquiry of P.W.43 led to the finding that salary was fraudulently
drawn in the name of Ranjit Rai amounting to ₹ 17,325/- (Rupees
seventeen thousand three hundred and twenty five) only, for 4
months from January, 2012 to April, 2012 and for Priya Sharma ₹
45,186/- (Rupees forty five thousand one hundred and eight six)
only, for 3 months from February, 2012 to April, 2012, of a total
sum of ₹ 62,511/- (Rupees sixty two thousand five hundred and
eleven), only. P.Ws 2 and 6, both Officers of DESM&E had deposed
with regard to Exhibits 9 and 10, Files of the Department. P.W.6
harbouring doubts about the documents pertaining to Priya Sharma
and Ranjit Rai, processed Files, Exhibits 9 and 10 and forwarded it
to the concerned Departments, for verification. The Health
Department informed that the Office Order of Ranjit Rai was not
issued by the Department and the HRDD opined that the
documents pertaining to Priya Sharma were fake. The evidence of
P.W.7 with regard to Exhibit 18 (supra), Exhibit 19 (supra), Exhibit
20 (supra), Exhibit 21 (supra), were examined and found to be
fake by the Court. P.W.7 was aware about Exhibit 17, the apology
letter and deposed accordingly. Exhibits 23 to 56 supporting
various aspects of the Prosecution case were also examined. The
Learned Trial Court on consideration of the evidence of Prosecution
Witnesses and the documentary evidence, concluded that, Ranjit
Rai and Priya Sharma were not employees of DESM&E nor were
they ever employed under any Government Department in any
District. It was the Accused who had fabricated transfer Orders
and joining Reports of Ranjit Rai and Priya Sharma, and collected Crl.A. No.40 of 2018 11 Trilochan Kapoor Sharma vs. State of Sikkim
their salaries from the Office of the DESM&E, unsuspected by the
staff of the Department.
(i) The third question that the Learned Trial Court
considered was as to who had prepared the transfer Orders, joining
Reports of Ranjit Rai and Priya Sharma. The evidence of P.W.46,
the proprietor of a firm that deals in printing of stationeries and
manufacture of rubber stamps proved that the Appellant used to
visit their printing press. False rubber stamps were prepared and
used to create false documents by the Appellant identified as
Exhibit 17(g), Exhibit 19(b) and Exhibit 21(b) on Exhibits 17, 19
and 21. P.Ws 38, 39, 41 and 49 were witnesses to the specimen
handwriting collected by the Prosecution from the Appellant and his
daughter, Priya Sharma. The evidence of P.W.45 proved that Priya
Sharma was a student of the college of P.W.45, studying M.A. in
English. Priya Sharma was also examined as P.W.47, she proved
that she was never employed in Government service prior to her
appointment as a Post Graduate Teacher, in English, in Central
Pendam School in the year 2014. It was concluded that the
evidence of the Prosecution established the commission of the
crime by the Appellant.
(ii) The Learned Trial Court had considered whether the
Accused was suffering from mental illness and on considering
Exhibits X1 and X2 attested copies of medical reports furnished by
D.W.1, found that legal mental disorder was unproved as the
medical documents produced by the Accused and exhibited by
D.W.1 do not establish that at the particular point of time the
Accused was incapable of knowing the nature of his acts.
Consequently, the impugned Judgment and Order on Sentence
were pronounced.
Crl.A. No.40 of 2018 12
Trilochan Kapoor Sharma vs. State of Sikkim
6. While addressing the first question for consideration of
this Court, Section 84 of the IPC reads as follow;
"84. Act of a person of unsound mind.--
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."
(emphasis supplied)
(i) The most elaborate and authoritative exposition of the
law of insanity in common law is embodied in Daniel M‟Naghten‟s
case. It is interesting to recapitulate here that in January, 1843, at
the parish of Saint Martin, Middlesex, England, Daniel M‟Naghten
shot Edward Drummond, who he believed to be the British Prime
Minister Robert Pell, with a pistol, wounding him fatally.
Drummond died five days later and M‟Naghten was charged with
his murder. He pleaded „not guilty‟ by reason of insanity. Medical
evidence was furnished which stated that persons of otherwise
sound mind might be affected by morbid delusions and that,
M‟Naghten was so affected. That, a person laboring under such
delusion might usually possess a moral perception of right and
wrong, but in relation to acts connected to their delusion, may be
carried beyond the power of their own control, leaving them with
no such perception. In relation to the charge against M‟Naghten,
the question to be determined was, whether at the time the act in
question was committed, the prisoner had or had not the use of his
understanding, so as to know that he was doing a wrong or wicked
act. Evidence brought before the Court about the condition from
which M‟Naghten suffered stated that, a man may go on for years
quietly whilst under the delusion‟s influence, but had the potential
to break out into extravagant and violent paroxysm. M‟Naghten
was „acquitted‟ as being incapable of exercising control over his
acts whilst under his delusion.
Crl.A. No.40 of 2018 13
Trilochan Kapoor Sharma vs. State of Sikkim
In consequence to the alarm provoked by the acquittal of
M‟Naghten, the M'Naghten Rules (1843) 4 St. Tr.(N.S.) 847 came to be
formulated, based on the answers of a panel of Judges, given in
June, 1843, to a series of hypothetical questions, on the topic of
insanity, put to them by the House of Lords. The Learned Judges
unanimously laid down that to establish a defence on the ground of
insanity, it must be clearly proved that the accused;
i. laboured under a defect of reason ii. caused by a disease of the mind; so that either iii. he did not know the nature and quality of his acts, or that he did not know what he was doing was wrong. (ii) Section 84 of the IPC embodies the principles laid down
in M'Naghten Rules (supra) and the fundamental maxim of criminal
law - actus non facit reum nisi mens sit rea (an act does not
constitute guilt unless done with a guilty intention). It is by this
test as distinguished from medical test, that the criminality of the
act is to be determined. Consequently, before the Accused can be
entitled to the benefit of Section 84 of the IPC, he must establish
that at the time of committing the offence he was non composo
mentis (not of a sound mind). The unsoundness of mind must be
proved to be of a degree that by reason of such unsoundness, he was
incapable of knowing the nature of the act or that he was doing what is
either wrong or contrary to law.
(iii) In State of Madhya Pradesh vs. Ahmadulla12, it was
affirmed that the burden of proof that the mental condition of the
accused was at the crucial point of time, such as, is described by Sec.84,
lay on the accused, who claimed the benefit of this exemption.
Ayyangar, J., observed : "In this connection the Court below have
failed to take into account the circumstances, in which the killing
12 AIR 1961 SC 998 Crl.A. No.40 of 2018 14 Trilochan Kapoor Sharma vs. State of Sikkim
was compassed. The accused bore ill-will to Bismilla and the act
was committed at dead of night when he would not be seen, the
accused taking a torch with him, access to the house of the
deceased being obtained by stealth, by scaling over a wall. Then
again, there was the mood of exaltation which the accused
exhibited after he had put her out of her life. It was crime
committed not in a subsequent mood of insanity but one that was
preceded by careful planning and exhibiting cool calculation in
execution and directed against a person who was considered to be
the enemy."
Thus, from a bare reading of the above extract is concludes
that the burden of proof lies on the Appellant to establish that he
was suffering from mental unsoundness at the time of the offence,
in other words at the time when he committed the offence. It
further obtains that where a crime is preceded by careful planning
and calculation in execution, the Accused cannot be said to be
labouring under a mental disease, of course the Court is to exercise
its discretion analyzing the individual facts and circumstances of
the case before it.
(iv) In Elavarasan vs. State13, the Supreme Court inter alia
observed that while determining whether the Accused is entitled to
the benefit of Section 84 of the Code, the Court has to consider the
circumstances that preceded, attended or followed the crime.
That, it is equally true that such circumstances must be established
by credible evidence.
This ratio too lays down that the Appellant must by credible
evidence establish his mental condition if he seeks the benefit of
13 AIR 2011 SC 2816 Crl.A. No.40 of 2018 15 Trilochan Kapoor Sharma vs. State of Sikkim
Section 84 of the Indian Evidence Act, 1872, (hereinafter, the
"Evidence Act").
(v) In Devidas Loka Rathod (supra) the Supreme Court
considered the doctrine of burden of proof in the context of the
plea of insanity and referred to Dahyabhai Chhaganbhai Thakkar vs.
State of Gujarat14, wherein it was inter alia observed as follows;
"(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the 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 rest upon a party of 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 offence, including mens rea of the accused in that case the court would be entitled to acquit the accused on the ground that genuine burden of proof resting on the prosecution was not discharged." (emphasis supplied)
(vi) In Ratan Lal vs. State of M.P.15, it was observed that the
crucial point of time at which unsoundness of mind should be
established is the time when the crime is actually committed and
the burden of proving this lies on the Accused.
(vii) That, having been noticed, every person is presumed
to be sane unless proof to the contrary is shown, this is where
Section 105 of the Evidence Act, kicks into place and casts a
burden upon the offender. As held in Ratan Lal (supra), the
unsoundness of mind should be at the time of commission of crime
and is to be proved by the Accused. There is however a distinction
between the nature of burden that lies on the accused under
14 AIR 1964 SC 1563 15 (1970) 3 SCC 533 Crl.A. No.40 of 2018 16 Trilochan Kapoor Sharma vs. State of Sikkim
Section 105 of the Evidence Act, which calls upon him to furnish
proof to the extent of preponderance of probability, while the
Prosecution is mandated to prove the guilt of the Accused beyond
reasonable doubt.
7. On the anvil of the principles that have been delineated
hereinabove it is now essential to consider whether the Appellant
has by preponderance of probability established that he was
suffering from unsoundness of mind at the time of offence. The
offence took place between January, 2012 and May, 2012, which in
the first instance is an extended period of time revelatory of the
fact that the Appellant had adequate time to plan and execute the
offence. It was not an act committed on the spur of the moment
whilst deprived of the power of self control and executed under
grave and sudden provocation. It was executed over a period of
four months with careful and meticulous planning enabling the
Appellant to fraudulently reap financial benefits. The evidence on
record reveals that although the I.O. had interacted with the
Appellant during investigation, the Appellant did not inform the I.O.
at any time, of his mental illness, either then or at the time of
commission of the offence. The I.O. cannot be held responsible on
this count in the absence of divulgence by the Appellant. This
circumstance was not even put forth before the Court.
(i) To establish the mental unsoundness of the Appellant,
Learned Senior Counsel would urge this Court to consider Exhibit
X1 and Exhibit X2 (Attested copies of documents). Exhibit X1 colly
in two pages bears the name of the Appellant indicating that he has
been diagnosed with schizoaffective disorder. The document is
devoid of a date. Exhibit X2 bears the date 14th March, 2017,
which refers the Appellant to NIMHANS. Both the documents do Crl.A. No.40 of 2018 17 Trilochan Kapoor Sharma vs. State of Sikkim
not pertain to the period of offence and thereby fail to fortify the
Appellant‟s case of unsoundness of mind. The Prescriptions in
Exhibit X2 are also of the years 2017 and 2018. As already
discussed, the mental instability must be at the time of offence, not
years after it commission. Bearing in mind the propensity of the
Appellant to create false documents and the fact that the
documents are not furnished or proved in terms of the provisions of
the Indian Evidence Act, this Court disregards these documents.
The documents are attested copies with no explanation of the fate
of the originals.
(ii) Section 105 of the Evidence Act reads as follows;
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
Illustration (a) reads 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."
(iii) Mere verbal assertion of such an important issue i.e.,
mental unsoundness, sans an iota of documentary evidence, is not
tenable in the eyes of law. It is unbelievable that the Appellant
and his family could be remiss about maintaining the medical
documents pertaining to his mental health. That apart, although
D.W.2, his wife deposed that in the month of July, 2008 he was
admitted to the STNM Hospital and then in 2011 he was referred to
NIMHANS Hospital, she failed to buttress her evidence with
documents. Under cross-examination, the fact that her husband
regularly attended office, in a normal condition, prior to the Crl.A. No.40 of 2018 18 Trilochan Kapoor Sharma vs. State of Sikkim
registration of the case and during that period he was promoted
from Administrative Officer to Deputy Director, DESM&E, in which
post he was working during the registration of the case, was
elicited from her. The evidence of D.Ws 1 and 3 lend no succour
whatsoever to the Appellant‟s plea of insanity. Hence, the Learned
Trial Court correctly concluded that the benefit of Section 84 of the
IPC could not be extended to the Appellant.
(iv) The Learned Senior Counsel for the Appellant sought
to foist the responsibility on the Learned Trial Court for failing to
evaluate the mental health of the Appellant, in terms of Section
328 of the IPC. This provision comes into play only when the
Learned Judge has reason to believe that the person against whom
the enquiry is being held is of unsound mind. Random orders
cannot be issued when the Appellant exhibits no external signs of
an unsound mind or fails to furnish documents before the Court
with the plea of insanity. It is worth noting that nothing prevents
the Accused from informing the Court or producing documents to
put forth his case of mental instability.
(v) Now to address the question on the aspect of
„Sanction‟, Learned Senior Counsel for the Appellant relied on Ashok
Kumar Aggarwal (supra) and contended that the Prosecution must
forward the entire records of the case to the sanctioning authority
including materials and documents, which may tilt the balance in
favour of the accused, on the basis of which, the competent
authority may refuse sanction. It is relevant to notice that the
Supreme Court in the ratio of Ashok Kumar Aggarwal (supra)
observed as follows;
"7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority adequate material for such grant was made available to the Crl.A. No.40 of 2018 19 Trilochan Kapoor Sharma vs. State of Sikkim
said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
.................................................................................."
(emphasis supplied)
(vi) The ratio lays down that "adequate material" for
granting sanction is to be forwarded and not any and every
material which are with the Investigating Agency. On the bedrock
of the decision cited hereinabove, when we examine the evidence
of P.W.44, the then Additional Secretary, (Confidential), Home
Department, Government of Sikkim, she has stated that she
perused the entire Charge-Sheet including the relevant documents
filed with the Charge-Sheet. The sanction Order comprises of six
pages, revealing the consideration of all necessary details by
P.W.44 and due application of mind, before obtaining approval of
the higher authority to issue a sanction Order, in compliance of
Section 197 of the Cr.P.C. Exhibit 161 is a comprehensive
document, revealing that the witness was seized of the entire facts
of the case which she noted in the said document. The sanction
Order has been issued "By Order and in the name of the Governor"
the authority competent to appoint and remove the Appellant from
Government service. Article 166 of the Constitution provides that; Crl.A. No.40 of 2018 20
Trilochan Kapoor Sharma vs. State of Sikkim
"166. Conduct of business of the Government of a State.─(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on grounds that it is not an order or instrument made or executed by the Governor.
(3) ........................................................................."
(vii) The sanction Order was thus issued by the competent
authority, duly communicated under the signature of P.W.44. The
sanction Order suffers from no shortcomings. Relevantly, it may
also be noticed that the cross-examination of P.W.44 did not
question her competence to issue Exhibit 161. On this facet,
apposite reference is made to the ratio in P.K. Pradhan vs. the State
represented by the Central Bureau of Investigation 16, at his juncture
wherein the Supreme Court held as follows;
"5. The legislative mandate engrafted in sub- section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation.
16
AIR 2001 SC 2547 Crl.A. No.40 of 2018 21 Trilochan Kapoor Sharma vs. State of Sikkim
..............................................................................................
7. The view taken by Sulaiman, J. has been approved by the Privy Council in H.H.B. Gill v. The King, AIR 1948 PC 128 : (49 Cri LJ 503) where the Court laid down the law at page 133 (of AIR) : (at p.508 of Cri LJ) which runs thus:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."
(Emphasis added) ..............................................................................................
9. In the case of Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302 : (AIR 1955 SC 309 :
1955 Cri LJ 865) upon a detailed discussion, this Court was of the view that if the discharge of official duty and the act of the accused complained of are inseparable, sanction under Section 197 of the Code would be necessary. Venkatarama Ayyar, J., speaking for the Court observed at pages 1307-08 (of SCR) : (at p. 312 of AIR : at p.868 of Cri LJ) which runs thus:─ "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."
(Emphasis added) ..............................................................................................
13. In the case of Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC 500 : (2000 AIR SCW 3725 : AIR 2000 SC 3187 : 2000 Cri LJ 4631), while considering the scope of Section 197 of the Code, this Court observed at page 507 (of SCC) : (at p.3730 of AIR SCW : at p.3191 of AIR : at p.4635 of Cri LJ) which runs thus:─ "We have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) apply to the facts of the present case."
14. In the case of K. Satwant Singh v. State of Punjab (1960) 2 SCR 89 : (AIR 1960 SC 266 :
1060 Cri LJ 410) a Constitution Bench of this Court observed that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, Crl.A. No.40 of 2018 22 Trilochan Kapoor Sharma vs. State of Sikkim
acceptance of bribe, an offence punishable under Section 161 of the Penal Code is one of them and offence of cheating and abetment thereof is another. Likewise, another Constitution Bench in the case of Om Parkash Gupta v. State of U.P., 1957 SCR 423 : (AIR 1957 SC 458 : : 1957 Cri LJ 575) observed that a public servant committing criminal breach of trust does not normally act in his public capacity, as such no sanction is required for such an act." (emphasis supplied)
The observations supra lucidly elucidate the circumstances
under which the provision of Section 197 of the Cr.P.C. would be
applicable. Sanction is required only when the official work and the
offence are inextricably connected. Defalcation of Government
funds is not a part of the works entrusted to the Appellant, which
thereby eliminates the requirement of sanction under Section 197
of the Cr.P.C. for the present purposes.
(viii) So far as admission of guilt of the Appellant is
considered, in Gokak Patel Volkart Ltd. (supra), the Supreme Court
observed that where the Accused refunds the amount of money
said to be defalcated, it is an admission of his guilt. The Appellant
has by repayment personally of a sum of ₹ 66,834/- (Rupees sixty
six thousand eight hundred and thirty four) only, to the State
Treasury, unequivocally accepted his complicity in the offence.
(ix) The arguments regarding the apology letter being
prepared under duress is belied by the corroborative evidence of
P.Ws 7, 8, 16, 18 and 35 and does not merit prolix discussions.
The question of the other officers being complicit along with the
Appellant is a last resort to unburden himself of the crime and foist
it on persons who had no hand in the offence. Had they been
complicit there was no reason for the Office Superintendent, P.W.7,
to report the matter and forward Exhibits 9 and 10 to the
concerned Departments for verification. This argument is
disregarded deserving no consideration.
Crl.A. No.40 of 2018 23
Trilochan Kapoor Sharma vs. State of Sikkim
(x) The evidence of the Handwriting Expert in my
considered view was erroneously disregarded by the Trial Court.
Indeed the opinion of such an Expert is not conclusive proof but it
does assist in reaching a finding of guilt or otherwise of the
Accused when considered in tandem with other evidence on record.
On my examination of the evidence of P.W.42, and perusal of the
documentary evidence, it appears that the admitted handwritings
and signatures of the Appellant are in Exhibits 129, 130 to 132 and
150 to 155, marked by the P.W.42 as "A1 to A10". The specimen
handwritings of the Appellant are in Exhibits 95, 134 to 139
marked by the Expert as "S1 to S47". The questioned handwritings
and signatures have been marked by the Expert as "Q1 to Q22" in
various Exhibits. The Expert opined that the person who wrote "A1
to A4" (admitted handwritings of the Appellant) also wrote "S1 to
S47" and "Q1 to Q22", the reasons for reaching the finding was
elucidated by him.
"A1 to A3" are found on Exhibits 150 to 152 and "A4" on
Exhibit 153. These signatures are on Office Orders issued by the
DESM&E the work place of the Appellant. These admitted
signatures of the Appellant being „A‟ series supra, tally with the
signatures „Q1‟ on Exhibit 39, which is the salary receipt of Priya
Sharma, LDC for the month of February, 2012. „Q2‟ and „Q2/1‟,
pay roll of Priya Sharma on Exhibit 40. Similarly, „Q6‟ on Exhibit
42 the salary receipt of Priya Sharma; „Q7‟ on Exhibit 43 the roll of
pay of Priya Sharma, „Q8‟ on Exhibit 25 salary slip of Priya Sharma;
„Q10‟ on Exhibit 33 the salary slip of Ranjit Rai; are found to have
been signed by the person who write "A1 to A4" i.e., the Appellant.
„Q13‟ the signature appearing on Exhibit 37, the salary receipt of
Ranjit Rai is also said to correspond with "A1 to A4". „Q14‟ Crl.A. No.40 of 2018 24 Trilochan Kapoor Sharma vs. State of Sikkim
signature on Exhibit 18, the joining Report of the Ranjit Rai is
found to have been written by the person who wrote "A1 to A4".
Exhibit 17, the apology letter of the Appellant bearing his signature
as „Q15‟ corresponds to the signature "A1 to A4". „Q17/1‟ and
„Q17/2‟ the signatures appearing on Exhibit 57 the Proforma for
details of family are said to have been signed by the person who
signed as "A1 to A4". „Q 18‟ signature on Exhibit 20 the Office
Order of Priya Sharma transferring her from North Sikkim to
Gangtok is said correspond with the signatures "A1 to A4". „Q19‟
signature on Exhibit 21, the joining Report of Priya Sharma, was
also signed by the person who signed "A1 to A6". „Q20‟ signature
on Exhibit 22 the relieving Order of Priya Sharma is said to have
been written by the person who signed "A1 to A4".
(xi) The evidence of P.W.42 with regard to the similarities
of the signatures as elucidated in detail supra, remained
undemolished, pointing to the involvement of the Appellant in the
offence in view of the evidence of the other Prosecution Witnesses
already discussed supra.
(xii) The argument pertaining to the illegality of seizures
cannot be countenanced as all legal prescribed procedure have
been followed. No specific ground of non-compliance of procedure
has been laid before this Court.
8. In the end result, it obtains that the Appellant
meticulously planned and executed the offences that he was
Charged with, over an extended period of time, enabling him to
wrongfully gain financially from the offence. This has been
established by cogent and unwavering evidence, furnished by the
Prosecution, aided by the act of the Appellant repaying the
defalcated sum into the State Treasury. In light of the foregoing Crl.A. No.40 of 2018 25 Trilochan Kapoor Sharma vs. State of Sikkim
detailed discussions, the impugned Judgment of conviction
warrants no interference and is accordingly upheld.
9. On the question of Sentence, the plea of Learned
Senior Counsel has been detailed in the foregoing discussions.
10. Having considered the submissions, the attention of
Learned Senior Counsel for the Appellant is relevantly drawn to the
observations of the Supreme Court in Mohd. Hasim vs. State of Uttar
Pradesh and Others17 held as follows;
"19. The learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha [(1974) 4 SCC 222] and Ratan Lal Arora [(2004) 4 SCC 590]. We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognised and accepted for the PO Act."
(i) In Harendra Nath Chakraborty vs. State of West Bengal18, the
Hon‟ble Supreme Court in Paragraphs 27 and 28 held as follows;
"27. The appellant was dealing with an essential commodity like kerosene. If Parliament has provided for a minimum sentence, the same should ordinarily be imposed save and except some exceptional cases which may justify invocation of the proviso appended thereto.
17
(2017) 2 SCC 198 18 (2009) 2 SCC 758 Crl.A. No.40 of 2018 26 Trilochan Kapoor Sharma vs. State of Sikkim
28. In India, we do not have any statutory sentencing policy as has been noticed by this Court in State of Punjab vs. Prem Sagar [(2008) 7 SCC 550]. Ordinarily, the legislative sentencing policy as laid down in some special Acts where the parliamentary intent has been expressed in unequivocal terms should be applied. Sentence of less than the minimum period prescribed by Parliament may be imposed only in exceptional cases. No such case has been made out herein."
Thus, the above observations lay down that the minimum
Sentence prescribed by the statute has to be imposed on the guilty
and cannot be reduced. Although the offences under the IPC under
which the Appellant was convicted does not put forth a minimum
Sentence of imprisonment however, Section 13(1)(d)(i) of the PC
Act punishable under Section 13(2) of the same Act, specifically
prescribes simple imprisonment for a period of not less than one
year and fine thereof. Consequently, there can be no reduction of
this Sentence to one month as prayed.
11. The Sentence of imprisonment and fine imposed by the
Learned Trial Court, vide impugned Order on Sentence warrants no
interference.
12. Appeal dismissed.
13. The Appellant shall appear before the Court of Learned
Special Judge, Prevention of Corruption Act, 1988, Namchi, to
undergo the Sentence imposed on him, in terms of the impugned
Order on Sentence, dated 29-09-2018, by 05.00 p.m., today.
14. Let a copy of this Judgment along with the original
records of the case be transmitted to the Learned Special Judge,
Prevention of Corruption Act, 1988, Namchi, forthwith, for
information and compliance.
( Meenakshi Madan Rai ) Judge 02-05-2023 Approved for reporting : Yes sdl
