THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.08.2011
+ CRL.A. No.350/1997
MOHAN LAL @ RANJAN MOHAN BHATNAGAR ...Appellant
versus
THE STATE (NCT OF DELHI) ...Respondent
Advocates who appeared in this case:-
For the Appellant : Mr Ajay Verma, Advocate
For the Respondent : Ms Richa Kapoor, APP
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MS JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VEENA BIRBAL, J
1. The present appeal is directed against the judgment dated
02.09.1997 passed by the learned Additional Sessions Judge, New
Delhi, arising out of FIR No. 77/1989, P.S. R.K. Puram, under
CRL.A. No.350/1997 Page 1 of 27
Section 302/307 IPC wherein the appellant has been convicted for
the offence punishable under Section 302 for having committed the
murder of his minor son, namely, Aditya and under Section 325
IPC for having caused grievous hurt to his wife Rajeshwari (PW-
7). The appeal is also directed against the order on sentence dated
03.09.1997 whereby the appellant has been sentenced to undergo
life imprisonment and to pay a fine of ` 2000/- and in default of
payment of fine to further undergo RI for six months under Section
302 IPC and is also awarded RI for 3 years and fine of ` 500/- and
in default of payment of fine to further undergo RI for one month
under Section 325 IPC.
2. The case of the prosecution is based upon the statement
Ex.PW-1/A of Sohan Lal (PW-1) brother of appellant to the police
wherein it is alleged that his sister Sarita (PW-2) and elder brother
Mohan Lal i.e., appellant were residing at quarter No. 423, Sector-
7, R.K. Puram. His sister was in a government job and the said
quarter was allotted to her. The marriage of the appellant Mohan
Lal was solemnized in December 1984 with Rajeshwari (PW-7), a
CRL.A. No.350/1997 Page 2 of 27
resident of Jaipur. They were not having cordial relations since
their marriage. Due to their strained relations, Rajeshwari (PW-7)
had been residing with her parents for the past two years. Her
parents were not sending her back as the appellant was
unemployed. Few days prior to the occurrence, Sarita (PW-2) and
the complainant i.e., Sohan Lal (PW-1) went to Jaipur and brought
Rajeshwari as well as her son Aditya aged 2½ years to Delhi on
19.02.1989 after speaking to her parents. Thereafter, the appellant
along with Rajeshwari (PW-7) and Aditya started residing at the
aforesaid quarter i.e., 423, Sector-7, R.K. Puram. It is alleged that
on 23.02.1989, Sarita (PW-2) went to the house of his brother
Sohan Lal for residing at Netaji Nagar. Appellant and his wife and
their son Aditya remained at home. At about 12.00 midnight
appellant had a quarrel with Rajeshwari (PW-7) as he was
suspecting that she was having illicit relations with one Babli @
Zamil and Aditya was son of said Zamil. It is alleged that
Rajeshwari (PW-7) confessed that she was having illicit relations
with Zamil and thereupon the appellant Mohan Lal, his wife
CRL.A. No.350/1997 Page 3 of 27
Rajeshwari and his son Aditya lay down on the bedding of his
floor. It is alleged that appellant could not sleep and at about 12.00
mid night, he strangulated the throat of his son Aditya. It is further
alleged that when Rajeshwari (PW-7) came for the rescue of her
child, appellant picked up a thapi (which is used for washing
clothes) and struck her head. Thereupon appellant locked the
house leaving Rajeshwari (PW-7) and deceased Aditya there and
went to the house of his brother Sohan Lal (PW-1) at Netaji Nagar
and told them about the alleged incident. It is alleged that Sarita
(PW-2) and Sohan Lal (PW-1) came to quarter No. 423 and
opened the lock of the house where Aditya was found dead and
Rajeshwari (PW-7) was groaning with pain in an injured condition.
Rajeshwari (PW-7) was removed to Safdarjung Hospital whereas
appellant Mohan Lal and Sarita remained at home. On the basis of
aforesaid statement, FIR Ex. PW-3/A was registered against the
appellant and thereupon the I.O. Inspector Gurdeep Singh (PW-26)
reached the place of occurrence where the dead body of a child
was lying on the floor. The crime team was called which inspected
CRL.A. No.350/1997 Page 4 of 27
the spot. Necessary articles were seized from the spot by preparing
necessary memos in this regard. During investigation, statements
of witnesses were recorded. The appellant Mohan Lal was
arrested. Statement of Rajeshwari (PW-7) and her father (PW-6)
were got recorded under Section 164 Cr.P.C. by producing them
before the concerned M.M. After completion of necessary
formalities, a report under Section 173 Cr.P.C. was prepared and
was filed before the concerned M.M.
3. Before the learned M.M. on 22.06.1999, an application under
Section 328 Cr.P.C. was moved on behalf of appellant by his
counsel to the effect that appellant was mentally sick and was not
in a sound state of mind and a request was made to inquire about
the state of mind of the appellant and for postponement of
proceedings. On the said application, an order was passed by
Learned M.M. for producing the appellant before Superintendent,
Mental Hospital, Shahdara for medical examination. Thereupon
appellant was got examined there and a report Ex.CW1/A was
submitted by Dr. Baqar Mujtaba who was examined as CW1
CRL.A. No.350/1997 Page 5 of 27
before learned M.M. and thereafter vide order dated 24.02.1990,
the learned M.M. held that appellant was of unsound mind and was
not capable of making his defence and the proceedings of the case
were postponed till further orders. Thereafter, the case was being
adjourned from time to time and the medical report concerning
mental status of the appellant was being called from time to time.
On the receipt of medical reports from time to time and on finding
that the appellant was fit to face trial, the case was committed to
Sessions on 16.02.1993. On 03.02.1994, charge was framed
against the appellant under Section 302/307 IPC to which he had
pleaded not guilty and claimed trial and thus was tried before the
learned Addl Sessions Judge, New Delhi.
4. The prosecution in all had examined 26 witnesses, out of
which Sohan Lal PW-1 and Sarita PW-2 are the brother and sister
of the accused. Rakesh Kumar PW-4 is the witness before whom
blood sample of the deceased child and thapi were seized. Prahlad
Rai PW-6 is the father-in-law of the appellant. Rajeshwari Devi
PW-7 is the wife of the appellant. Smt. Sangita Dhingra, Ld. Addl
CRL.A. No.350/1997 Page 6 of 27
Sessions Judge (at the relevant time learned M.M., New Delhi)
recorded the statement of Prahlad Rai (PW-6) and Rajeshwari
(PW-7) under Section 164 Cr.P.C. Remaining testimony relates to
police and medical witnesses.
5. The incriminating evidence was put to appellant under
Section 313 Cr.P.C. who denied the same and stated that present is
a false case and he was an innocent person. The appellant had
stated that about 4-5 months prior to the incident, he started
hearing super natural voices and they used to tell him that his wife
had got pregnant from one Babli @ Zamil Ahmed. He also went
to Jaipur to inquire about the same. He sent his sister and brother
to inquire about the same but the same was found to be incorrect.
He was not mentally fit. He has not committed the murder of his
son nor has he inflicted injuries to his wife. He has been falsely
implicated by his wife and her father. When he was lodged in jail,
he was deaf and dumb at that time. He was not mentally fit at the
time of incident.
CRL.A. No.350/1997 Page 7 of 27
In defence, 5 witnesses are produced -Dr Baqar Mujtaba
(DW-1), Dr. Rajesh Kaul (DW-2), Dr. Mohan Lal, CMO,
Directorate of Health Services (DW-3), Dr. S.E.K. Kharkhongor
(DW-4) from Central Jail Hospital, Tihar, New Delhi and Sh.
A.K. Gupta, Junior Psychapric, Social Worker (DW-5).
6. Learned trial court on the basis of evidence on record
rejected the defence of the accused that he was mentally unfit at
the time of occurrence as such had not committed any offence in
view of Section 84 of IPC. Learned Addl Sessions Judge held that
the burden of proving the mental condition of the appellant at the
crucial point was upon him and he had failed to prove the same
and accordingly rejected the defence of insanity. On the basis of
evidence on record, the learned Addl Sessions Judge had held him
guilty of committing the murder of his son Aditya aged about 2½
years and also having caused grievous injuries to his wife
Rajeshwari PW-7 and thereby convicted the appellant for offence
under Section 302 and 325 IPC and sentenced him vide order dated
03.09.1997 as is stated above.
CRL.A. No.350/1997 Page 8 of 27
7. The amicus curiae appearing for the appellant has
contended that the appellant at the time of occurrence was
suffering from paranoid schizophrenia and was mentally unsound
at the time of occurrence as such he could not have been convicted
of any offence and was entitled to the benefit of general exception
contained in Section 84 of IPC. It is contended that the evidence
on record shows that before the commencement of trial the
appellant was got examined by various doctors by the learned
Metropolitan Magistrate in the proceedings under Section 328
Cr.P.C. and was found to be a man of unsound mind and the
learned M.M. also passed an order in this regard dated 24.02.90
and the trial had commenced only when he was declared mentally
fit. The appellant also produced five witnesses in defence to
substantiate his stand that he was mentally unsound and the doctors
opined that he was suffering from paranoid schizophrenia.
Learned amicus curiae has also referred to the evidence of Sohan
Lal (PW-1) and Sarita (PW-2) to substantiate that the appellant at
the time of occurrence was a man of unsound mind and as such
CRL.A. No.350/1997 Page 9 of 27
was entitled for the benefit of general exception contained in
Section 84 of IPC.
8. The learned counsel for the State has contended that burden
of proof that the appellant was of unsound mind and as a result
thereof he was incapable of knowing the consequence of his act
was on the defence. It is contended that under Section 105 of the
Evidence Act the burden of proving the existence of circumstances
bringing the case within the exception under Section 84 of IPC was
upon the defence and the defence has failed to discharge the said
burden. It is contended that nothing has been placed on record to
show that prior to the occurrence the appellant was suffering from
paranoid schizophrenia as is alleged. It is contended that for the
first time, learned M.M. has been informed of mental unsoundness
of appellant after about 4 months of occurrence and after about
one month of filing of report under Section 173 of Cr.P.C. against
the appellant. Prior to that no such stand has been taken. It is
further contended that the conduct of the appellant after
commission of the crime i.e., of having locked the room where
CRL.A. No.350/1997 Page 10 of 27
incident had occurred and of concealing the weapon of offence
thapi behind the door and thereafter going to the house of his
brother Sohan Lal demolishes the stand of defence that appellant
was a man of unsound mind at the time of occurrence. It is
contended that no abnormal behavior of appellant was noticed at
the time of his arrest. Further, nothing about the alleged delusion
was stated during the investigation. None of his family members
had stated about the delusion in the evidence during the trial. It is
contended that neither the lawyer of appellant nor his relatives i.e.,
brother and sister took the stand of insanity at initial stages. It is
contended that even if it is held that after the incident he has been
found to be a patient of paranoid schizophrenia the same cannot
relate back to the date of the incident. It is contended that no
evidence was produced in this regard by the defence nor any
treatment papers had been produced concerning the appellant prior
to the occurrence. Even the application filed before the Magistrate
does not give any particulars as to when the alleged ailment
started. It is contended that Ld Addl Sessions Judge has rightly
CRL.A. No.350/1997 Page 11 of 27
appreciated the evidence and convicted the appellant and passed
the order on sentence and no interference of this court is required.
9. Rajeshwari PW-7 is the star witness of the occurrence being
one of the victims. She is also the wife of the appellant and the
mother of deceased Aditya. She had deposed that she was married
to accused on 05.12.1984 and after the marriage appellant used to
harass her and also used to give her beatings due to inadequacy of
dowry. She had also deposed that the appellant was not doing any
job and accused also did not wish to have any child and whenever
she conceived, he forced her to go for an abortion. The deceased
Aditya was born to her two years after the marriage and she gave
birth to the child in her parents‟ house as she was apprehending
that appellant may not force her for the abortion. On 19.02.1989,
she had come to Delhi along with her son Aditya as Sohan Lal
PW-1 and Sarita PW-2, brother and sister of appellant had come to
her parental home at Jaipur and brought her to Delhi. She had
deposed that on the night of 22.02.1989, accused quarrelled with
her by saying that the son i.e., deceased Aditya was not from him
CRL.A. No.350/1997 Page 12 of 27
and the appellant slapped her and at about 2.30 a.m. on
22/23.02.1989 appellant pressed the throat of Aditya and when she
tried to save him the appellant killed Aditya by pressing his throat
and when she cried and raised an alarm, appellant had hit thapi Ex.
PW-26/D on her head due to which she fell down and became
unconscious. During the trial, she also proved the blood stained
clothes i.e., Pyjama Ex.P.1 and shirt Ex.P.2 and the thapi Ex.P.4
with which she was hit by the appellant and she also proved the
sweater Ex.P.5, shirt Ex.P.6, necker Ex.P.7, baniyan Ex.P.8 and T.
shirt Ex.P.9 being that of Aditya and she also proved the sweater
Ex.P.10, pant Ex.P.11 and shirt Ex.P.12 being that of the accused
which he was wearing at the time of incident. She also proved the
bed sheet Ex.P.13, quilt Ex.P.14, mattresses Ex.P.15 and P.16,
pillows Ex.P.17 and P.18 which were lying in the bed room at the
time of incident. The evidence of injured eye witness i.e.,
Rajeshwari as regards the role of the appellant at the time of
incident is not shaken in the cross-examination. She had stated in
her evidence that the incident had occurred on 22/23.02.1989.
CRL.A. No.350/1997 Page 13 of 27
Even her father Prahlad Rai (PW-6) has stated the said date of
incident whereas the incident had taken place in the night
intervening 23/24.02.1989. Rajeshwari PW-7 was also admitted in
the hospital in the morning of 24.02.1989. DD No. PW-19/A by
which the information was received at the Police Station that
Rajeshwari PW-7 had been admitted in hospital was recorded on
24.02.1989. Her statement in court was recorded after 7 years of
the incident. The said discrepancy in date had come due to lapse
of time. Considering the totality of evidence on record, the said
discrepancy is immaterial. The testimony of Rajeshwari PW- 7
finds support from post mortem report Ex. PW-8/A which shows
that the cause of death was due to asphyxia following ante mortem
throttling. It also finds support from MLC Ex.PW-23/A dated 24th
February, 2009 of Rajeshwari (PW-7) as per which there are
injuries on forehead and parietal region and the same has been
opined as “grievous”. The testimony of PW-7 also gets support
from the CFSL report Ex.PW-26/M as per which blood group „A‟
is found on thapi Ex.P.4 as well as shirt Ex.P.12 of the appellant
CRL.A. No.350/1997 Page 14 of 27
which was the blood group of deceased. The evidence on record
clearly establishes that the accused has caused the alleged
occurrence.
Though Sohan Lal (PW-1) and Sarita (PW-2) have not fully
supported the case of prosecution despite that the case of
prosecution is not demolished in view of evidence of injured eye
witness which clearly proves the alleged occurrence. However,
Sohan Lal (PW-1) has admitted his signature in statement Ex.PW-
1/A.
10. The only plea raised while arguing the present appeal is that
at the time of the commission of the offence the appellant was a
person of unsound mind as he was suffering from paranoid
schizophrenia and as such was entitled to the benefit of the general
exception contained in Section 84 of IPC.
11. The material provisions dealing with the contention of the
appellant are as under:-
CRL.A. No.350/1997 Page 15 of 27
Indian Penal Code
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.
Indian Evidence Act
Section 105. 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.
AIR 1964 SC 1563, the doctrine of burden of proof in a case
where plea of insanity has been taken is discussed. The relevant
para is as under:-
“7. 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 rebuttable presumption that the accusedCRL.A. No.350/1997 Page 16 of 27
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.”
In Shrikant Anandrao Bhosale v. State of Maharashtra;
(2002) 7 SCC 748, it is held that burden of proving the existence
of circumstances bringing the case within the provision of Section
84 IPC is on the accused. What is paranoid schizophrenia has also
been discussed in the said judgment. The relevant paragraphs are
reproduced as under:-
“10. What is paranoid schizophrenia, when it
starts, what are its characteristics and dangers flowing
from this ailment? Paranoid schizophrenia, in the vast
majority of cases, starts in the fourth decade andCRL.A. No.350/1997 Page 17 of 27
develops insidiously. Suspiciousness is the
characteristic symptom of the early stage. Ideas of
reference occur, which gradually develop into delusions
of persecution. Auditory hallucinations follow, which
in the beginning, start as sounds or noises in the ears,
but afterwards change into abuses or insults. Delusions
are at first indefinite, but gradually they become fixed
and definite, to lead the patient to believe that he is
persecuted by some unknown person or some
superhuman agency. He believes that his food is being
poisoned, some noxious gases are blown into his room
and people are plotting against him to ruin him.
Disturbances of general sensation give rise to
hallucinations, which are attributed to the effects of
hypnotism, electricity, wireless telegraphy or atomic
agencies. The patient gets very irritated and excited
owing to these painful and disagreeable hallucinations
and delusions. Since so many people are against him
and are interested in his ruin, he comes to believe that
he must be a very important man. The nature of
delusions thus may change from persecutory to the
grandiose type. He entertains delusions of grandeur,
power and wealth, and generally conducts himself in a
haughty and overbearing manner. The patient usually
retains his memory and orientation and does not show
signs of insanity, until the conversation is directed to
the particular type of delusion from which he is
suffering. When delusions affect his behavior, he is
often a source of danger to himself and to others.
(Modi’s Medical Jurisprudence and Toxicology, 22nd
Edn.)
11. Further, according to Modi, the cause of
schizophrenia is still not known but heredity plays aCRL.A. No.350/1997 Page 18 of 27
part. The irritation and excitement are effects of illness.
On delusion affecting the behaviour of a patient, he is a
source of danger to himself and to others.”
12. The main question for consideration is whether at the time of
commission of offence appellant was suffering from paranoid
schizophrenia as is alleged.
13. The date of occurrence is night intervening 23/24.02.1989.
The FIR Ex. PW-3/A is registered on 24.02.1989 on the statement
Ex. PW-1/A of Sohan Lal PW-1, brother of accused. Nothing is
stated therein about the mental condition of appellant. The
statement of sister Sarita (PW- 2), who is an educated lady and at
the relevant time was a Government employee, was also recorded
at the time of investigation. She has also not stated in this regard.
It is not their stand that they had stated about the mental condition
of the accused at the time of investigation and police did not record
their statement in this regard. The accused was arrested on
24.02.1989. After his arrest, he was produced before the learned
M.M. It is not the stand of the defence that in the remand
CRL.A. No.350/1997 Page 19 of 27
proceedings before learned MM wherein accused was produced,
such a stand was taken. The charge sheet was filed against the
appellant before learned M.M. on 23.05.1989. The copies had
been supplied to the appellant on that day. On 07.06.1989 an
application is moved by his brother (PW-1) and sister (PW-2)
through counsel wherein prayer was made for engaging counsel
for the appellant. Only on 22.06.1989, an application is moved by
the advocate of the accused on his behalf under Section 328
Cr.P.C. wherein it is stated that appellant is suffering from mental
and physical infirmities and due to the unsound state of mind he
was unable to understand the proceedings. He has also lost hearing
and speaking powers. Therefore, request was made for calling for
the medical reports from the hospital. On the said date, the
application was also moved for providing „B‟ class facilities to the
appellant in Jail being a graduate. In both these applications, it is
not stated that at the time of commission of offence or prior to that
appellant was suffering from paranoid schizophrenia/unsoundness
of mind as is alleged.
CRL.A. No.350/1997 Page 20 of 27
The wife of appellant i.e., Rajeshwari (PW-7) with whom
appellant was married prior to the occurrence had denied in her
cross-examination that the appellant was suffering from insanity.
The report Ex.CW1/A was proved on record by the
psychologist Dr Baqar Mujtaba, CW1 before the learned M.M.
while deciding the application of appellant u/s 328 of Cr.P.C. The
said doctor had deposed having examined the appellant on
17.07.1989, 21.08.1989, 11.09.1989, 14.09.1989, 18.09.1989 and
20.09.1989 and also gave him many psychological tests to arrive at
a conclusion whether he was suffering from mental ailment or not
and if so what type of illness. After examining, the doctor gave
report Ex.CW1/A as per which the appellant was found suffering
from paranoid schizophrenia. Accepting that opinion the learned
MM during committal proceedings, declared vide order dated 24th
February, 1990 that the appellant was a man of unsound mind.
Dr Baqar Mujtaba has also appeared as a defence witness on
behalf of appellant as DW-1. The said doctor has deposed that at
CRL.A. No.350/1997 Page 21 of 27
the relevant time he was working in the Institute of Human
Behaviour and Allied Sciences, Shahdara, Delhi and he had
examined the appellant between 14.08.1989 to 29.09.1989 when
the case was sent to him by the then Medical Superintendent of the
hospital and after examining the appellant clinically as well as
through physiological tests diagnosed him as a patient suffering
from paranoid schizophrenia which is a type of mental illness and
he found him totally non-communicative but co-operative. He had
proved his report as Ex.DW-1/A. Thereafter, on 28.09.1990, he
examined the patient again for reassessment of his mental
condition. On examination, he found that appellant was still
suffering from some disorder and gave his report Ex.DW-1/B. The
aforesaid reports only show the mental status of appellant from
14.08.1989 to 28.09.1989 as well as on 28.9.1990 whereas the
incident had occurred on 23/24.02.1989.
Dr Yogesh Kaul DW-2 who at the relevant time was working
as G.D.O. in Tihar Jail has deposed having examined the appellant
on 16.05.1989. He found that the appellant was not having any
CRL.A. No.350/1997 Page 22 of 27
acute mental disease. He further deposed having found appellant fit
to remain in Jail. The said doctor had examined the appellant
much prior to examination by Dr Baqar Mujtaba DW-1. The said
doctor did not find appellant suffering from any acute mental
disease. The other defence witness produced by the appellant
during the trial was Dr Mohan Lal DW-3. The said doctor has
deposed that on 24.02.1989 he was attached to Mental ward of
Tihar Jail from Mental Hospital, Shahdara. The evidence of
aforesaid doctor is of no help to the appellant as he had stated that
record pertaining to appellant was not available in the jail. He
even did not remember whether he had examined appellant on 24th
February, 1989. The other witness produced by appellant was Dr
S.E.K. Kharkhongor DW-4, Associate RMO, Central Jail Hospital.
He had brought medical record of appellant from 15th May, 1989
to 12th June, 1994 and proved medical reports Ex.DW-4/A and
DW-4/B pertaining to appellant. Ex.DW-4/A shows medical
examination of appellant on 15th May, 1989 and 26th May, 1989.
As per medical examination dated 15th May, 1989, it is reported
CRL.A. No.350/1997 Page 23 of 27
that patient is not speaking and is referred to psychiatrist. As per
noting dated 26.05.1989 it is stated that no abnormal behaviour is
reported but the patient is not speaking at all. The overall defence
evidence discussed above shows that appellant had been examined
for the mental condition only after filing of charge sheet against
him. The reports discussed above do not show that appellant was
suffering from acute mental ailment at the time of initial
examination in the month of May. Thereafter, he has been
examined by DW-1 from 14.08.1989 to 29.09.1989. The said
doctor has opined that he was a patient of paranoid schizophrenia
and treatment was given to appellant and was cured in 1994 and
faced the trial of the present case. The report Ex.DW-1/A shows
that he was found to be of unsound mind at later stage. Nothing
has been placed on record by the defence to show that he was a
man of unsound mind at the time of occurrence or that prior to the
occurrence he had undergone some treatment in this regard. It is
also not the case of the defence that there was a family history of
appellant about this ailment. No treatment papers for unsoundness
CRL.A. No.350/1997 Page 24 of 27
of mind are there prior to occurrence or at the time of occurrence.
Further, his conduct after the occurrence i.e., after the incident he
had locked the room from outside and in the early hours of the day
had gone running to the house of his brother and brought him to
his house negatives the stand of defence that he was a man of
unsound mind at the time of occurrence. Neither Sohan Lal (PW-
1) nor his sister Sarita (PW-2) had stated in the evidence that
appellant was of unsound mind at the time of occurrence. Sohan
Lal (PW-1) in the evidence has stated that appellant sometimes
used to become violent and sometimes used to behave in an
unusual manner. His sister Sarita (PW-2) in cross-examination has
stated that appellant used to remain away from the house for 12-13
days and when he used to return back he used to be back without
clothes and shoes which he used to take with him. However, he
used to say that he was alright. The allegations made are vague.
No specific date and year is mentioned as to when he had behaved
in that manner. The name of the person with whom he used to
become violent or used to misbehave is also not stated. From these
CRL.A. No.350/1997 Page 25 of 27
circumstances, inference cannot be drawn that he was suffering
from unsoundness of mind at the time of occurrence as is alleged.
Rajeshwari (PW-7) and her father Prahlad Rai (PW-6) have denied
that the appellant was suffering from paranoid schizophrenia or
was under some treatment in this regard. Dr Kamal Krishan (PW-
21) who had examined the appellant on 24.02.1989 had stated that
on examination of appellant vide MLC Ex. PW 21/A, he found
him conscious and oriented. He denied the suggestion of defence
that appellant was not mentally sound when he examined him.
In view of above discussion, the defence has failed to
discharge the burden as required under Section 105 of Evidence
Act in order to avail the benefit of Section 84 of IPC. It has not
been established by the defence that accused was insane at the time
of occurrence nor is the evidence sufficient to throw a reasonable
doubt in our minds that the act might have been committed when
the appellant was in a fit of insanity.
In view of the above discussion, we dismiss the appeal.
CRL.A. No.350/1997 Page 26 of 27
The appellant is on bail. His bail stands cancelled. The
appellant be arrested for serving the remainder of his sentence.
A copy of the judgment along with record be sent to the
learned trial court for compliance.
VEENA BIRBAL, J
BADAR DURREZ AHMED, J
rd
AUGUST 23 , 2011
kks
CRL.A. No.350/1997 Page 27 of 27