Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 731 (HP)

Jyoti Swarup v. State of H. P.

2014-06-06

P.S.RANA, SANJAY KAROL

body2014
Judgment Sanjay Karol, J. Appellant-convict Jyoti Swarup, hereinafter referred to as the accused, has assailed the judgment dated 24.6.2008, passed by Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh, in Sessions Trial No.34 of 2004, titled as State of Himachal Pradesh v. Jyoti Swarup, whereby he stands convicted of the offence punishable under the provisions of Sections 302 and 452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and pay fine of Rs.5,000/- and in default thereof to further undergo simple imprisonment for a period of two years, in relation to an offence punishable under Section 302 of the Indian Penal Code; to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,000/- and in default thereof to further undergo simple imprisonment for a period of six months, in relation to offence punishable under Section 452 of the Indian Penal Code. 2. As per the case of prosecution, on 15.2.2003, Rohit (PW-3) alongwith his uncle Bhupinder Chauhan (PW- 4), were watching television in their house. At about 2.15 p.m., they heard cries of Smt. Kala Devi. They rushed outside their house and from the verandah saw the accused inflicting flow with an axe (Barara) on the head of Kala Devi. When Bhupinder Chauhan (PW-4) intervened, accused left the place, threatening to kill Kala Devi. Injured was taken for treatment to the Community Health Centre, Nankhari, where she was examined by the Medical Officer, who referred her for treatment to the State Hospital (IGMC) at Shimla. Rohit (PW-3) lodged a report at Police Post, Nankhari, on the basis of which FIR No.43/03, dated 16.2.2003 (Ex.PW-14/D), under the provisions of Sections 452/307/506 of the Indian Penal Code was registered at Police Station, Rampur. Pyare Lal (PW-6), Mohan Lal (PW-5) alongwith Hem Chand (not examined) brought the injured to IGMC, hospital at Shimla where she was examined by Dr. Gian Chand Rajput (DW-4). Injured succumbed to her injures in the hospital and died on the same day, on way to hospital. Her postmortem was conducted by Dr. Piyush Kapila (PW-7), who issued postmortem report (Ex. PW-7/A). SI Sangat Ram Negi (PW-14) conducted the investigation and from the spot recovered axe (Ex.P-1), which the accused had concealed. Recovery was effected in the presence of Dila Ram (PW-1), Roshan Lal (not examined) and Rattan Dass (not examined). Her postmortem was conducted by Dr. Piyush Kapila (PW-7), who issued postmortem report (Ex. PW-7/A). SI Sangat Ram Negi (PW-14) conducted the investigation and from the spot recovered axe (Ex.P-1), which the accused had concealed. Recovery was effected in the presence of Dila Ram (PW-1), Roshan Lal (not examined) and Rattan Dass (not examined). Blood stained clothes of the accused, i.e. Pyjama (Ex.P-2), shirt (Ex. P-3), sweater (Ex.P-4), blood stained sample of earth (Ex. P-5) and hair (Ex. P-6) were also collected by the police from the spot. Report of the Chemical Examiner (Ex.PX) was taken on record by the police. Investigation revealed that accused, without any cause, inflicted injury on the body of the accused and as such committed crime. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Sections 452 and 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as fifteen witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which the accused took a defence of innocence and false implication. However, in defence, he examined six witnesses to prove his plea of insanity. 5. Based on the testimonies of witnesses and other material placed on record, trial Court convicted the accused of an offence punishable under the provisions of Sections 452 and 302 of the Indian Penal Code and sentenced him as aforesaid. Hence, the present appeal. 6. Challenge to the judgment by Mr. Ravinder Thakur, learned counsel for the accused, is on a limited point. It is argued that accused, in a state of mental disorder, without realizing the consequences, committed the act of house trespass and murder. Thus, in law, there being no knowledge and intent, appeal needs to be allowed. More specifically, since 6.1.2003, accused was undertaking treatment for mental illness and as such, at the time of commission of offence on 15.2.2003, was not in a proper state of mind. Hence, he needs to be acquitted. 7. Mr. B.S. Parmar, learned Additional Advocate General, has supported the judgment for the reasons recorded therein. 8. More specifically, since 6.1.2003, accused was undertaking treatment for mental illness and as such, at the time of commission of offence on 15.2.2003, was not in a proper state of mind. Hence, he needs to be acquitted. 7. Mr. B.S. Parmar, learned Additional Advocate General, has supported the judgment for the reasons recorded therein. 8. From the conjoint reading of testimonies of prosecution witnesses, namely Dila Ram (PW-1), Rohit (PW-3), Bhupinder Chauhan (PW-4), it is evidently clear that prosecution has been able to establish, beyond reasonable doubt, the fact that it was the accused who gave a blow with an axe (Ex.P-1) on the head of deceased Kala Devi. They are spot witnesses and saw the occurrence of the incident. There is no infirmity in their testimonies, which are fully inspiring in confidence. Each one of them has categorically deposed that on 15.2.2003, at about 2.15 p.m., they saw the accused give a blow on the head of the deceased. PW-4 did try to intervene, but however, it was too late. 9. We further find that apart from the aforesaid witnesses, Rattan Dass (PW-2), Mohan Lal (PW-5) and Pyare Lal (PW-6) have also, in their testimony, which is fully inspiring in confidence, deposed about the accused having made a disclosure statement, got recovered incriminating articles. 10. Significantly, testimony of PW-3 that accused made a disclosure statement, which led to recovery of weapon of offence, remains unrebutted. 11. Inquest report (Ex.PW-5/A & 5/B) was prepared by the Investigating Officer SI Sangat Ram Negi (PW14) in presence of PW-5. Recovery of incriminating articles was also effected in the presence of Bhupinder Chauhan (PW-4) and other witnesses. 12. It also stands established through the testimony of PWs No.2, 3, 4 and 5 that accused was rendering services in the house of the deceased. He was looking after agricultural work. Recovery of incriminating articles, including the axe (Ex.P-1) and the clothes were sent for chemical analysis and as per report (Ex. 12. It also stands established through the testimony of PWs No.2, 3, 4 and 5 that accused was rendering services in the house of the deceased. He was looking after agricultural work. Recovery of incriminating articles, including the axe (Ex.P-1) and the clothes were sent for chemical analysis and as per report (Ex. PX), human blood was found on Pyjama, sweater (both belonging to accused), axe, blood stained earth & hair, sweater, muffler, specimen hair, specimen blood (all of deceased), but no affirmative opinion could be arrived at with regard to blood grouping; no blood was found on shirt of deceased, socks and specimen earth, however, human blood of ‘O’ group was found on basket, shirt, Salwar, belonging to the deceased; blood stained earth & hair, and specimen hair of the deceased were found to be that of a human being and they matched with each other. 13. That Kala Devi (deceased) expired on account of the injuries sustained by her stands established on record, not only through ocular evidence and more specifically that of Dr. Piyush Kapila (PW-7) but also postmortem report (Ex.PW-7/A). Death took place on account of head injury. 14. We clarify that the acts (house trespass and murder) committed by the accused have not been disputed before us. The judgment of the trial Court is attacked on a limited ground of unstable mind of the accused, at the time of commission of offence. In effect, plea of insanity, as one of the defences under the provisions of Section 84 of the Evidence Act, is taken. Nonetheless, we as part of our duty, being first Court of appeal, appreciated the prosecution evidence to ascertain the correctness of the findings retuned by the trial Court on the question of guilt of the accused. It is in this backdrop, we have expressed our views herein earlier. 15. Coming to the defence of insanity so taken by the accused, before we deal with the evidence on record, we shall first deal with the law on the issue. 16. Section 84 of the Indian Penal Code reads as under: “84. It is in this backdrop, we have expressed our views herein earlier. 15. Coming to the defence of insanity so taken by the accused, before we deal with the evidence on record, we shall first deal with the law on the issue. 16. Section 84 of the Indian Penal Code reads as under: “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.” 17. Sections 101 and 105 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act), read as under: “101. Burden of proof.- Whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.” “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 of 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. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. Illustrations (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. (b) A accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control; The burden of proof is on A. (c) Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.” (Emphasis supplied) 18. Apex Court in State of Madhya Pradesh v. Shmadulla, AIR 1961 SC 998 , has clearly held that burden to establish mental condition of the accused, at the crucial point of time, lies upon the accused, who claims such benefit of unsoundness of mind. 19. While taking note of provisions of Section 101 as also Section 105 of the Evidence Act, the apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 held that when a plea of legal insanity is set up, Court has to consider whether at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time of commission of offence. Whether accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed by the crime. The crucial point of time for ascertaining the state of mind of the accused is the time of commission of offence. Whether accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed by the crime. [Also see: Elavarasan v. State, represented by Inspector of Police, (2011) 7 SCC 110 ; Sidhapal Kamala Yadav v. State of Maharashtra, (2009) 1 SCC 124 ; Hari Singh Gond v. Statte of M.P., (2008) 16 SCC 109; Bablu alias Mubarik Hussain v. State of Rajasthan, (2006) 13 SCC 116; Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748 ; T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 ; State of H.P. v. Gian Chand, (2001) 6 SCC 71 ; (1974) 3 SCC 299 , Sheralli Wali Mohammed v. The State of Maharashtra, (1973) 4 SCC 79 ; Oyami Ayatu v. The State of Madhya Pradesh; and Bhikari v. The state of Uttar Pradesh, AIR 1966 SC 1 .] 20. In Amrit Bhushan Gupta v. Union of India and others, (1977) 1 SCC 180 , the apex Court had the occasion to deal with a case where, based on medical opinion of the convict suffering from schizophrenia, while appreciating the law as laid down in England, rejected the plea of the accused not to undergo sentence, so imposed by the criminal Court. 21. Further, in Paras Ram and others v. State of Punjab, (1981) 2 SCC 508 , the apex Court held that: “2. Just one more observation relevant to the punishment. The poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifice, in defiance of the scientific ethos of our cultural heritage and the scientific impact of our technological century, shows up in crimes of primitive horror such as the one we are dealing with now, where a blood-curdling butchery of one's own beloved son was perpetrated, aided by other 'pious' criminals, to propitiate some bloodthirsty deity. Secular India, speaking through the court, must administer shock therapy to such anti-social 'piety', when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Secular India, speaking through the court, must administer shock therapy to such anti-social 'piety', when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social justice has many facets and judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants. In discharge of this high duty, we refuse special leave in these applications against the correct convictions and sentences of the courts below.” 22. In Vijayee Singh and others v. State of H.P., (1990) 3 SCC 190 , the apex Court, observed that: “23. At his stage it becomes necessary to consider the meaning of the words "the court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act. Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved". 24. A fact is said to be "not proved" when it is neither "proved" nor "disproved". 24. The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused. 23. The apex Court in Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66 , held as under: “9. There are four kinds of persons who may be said to be non compos mentis (not of sound mind), i.e., (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hale's Pleas of the Grown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder, (See 1 Hale PC 30). pp.31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hale's Pleas of the Grown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity. 10. Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the: defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of: exemption from criminal responsibility. Stephen in 'History of the Criminal Law of England, Vo. II, p. 166 has observed that if a persons cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. II, p. 166 has observed that if a persons cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section This Court in Sheralli Walli Mohammed v. State of Maharashtra, (1973) 4 SCC 79 held that (SCC p.79): “The mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have the necessary mens rea for the offence.” 12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M’Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case. (1843) 4 St. Tr. NS 847(HM). Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient. 13. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.” (Emphasis supplied) 24. The apex Court in Sudhakaran v. State of Kerala, (2010) 10 SCC 582 , further observed as under: “30. A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law. 31. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a decision of the House of Lords rendered in the case of R. Vs. Daniel Mc Naughten [1843 RR 59: 8ER 718(HL)]. 31. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a decision of the House of Lords rendered in the case of R. Vs. Daniel Mc Naughten [1843 RR 59: 8ER 718(HL)]. In that case, the House of Lords formulated the famous Mc Naughten Rules on the basis of the five questions, which had been referred to them with regard to the defence of insanity. The reference came to be made in a case where Mc Naughten was charged with the murder by shooting of Edward Drummond, who was the Pvt. Secretary of the then Prime Minister of England Sir Robert Peel. The accused Mc Naughten produced medical evidence to prove that, he was not, at the time of committing the act, in a sound state of mind. He claimed that he was suffering from an insane delusion that the Prime Minister was the only reason for all his problems. He had also claimed that as a result of the insane delusion, he mistook Drummond for the Prime Minister and committed his murder by shooting him. 32. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The aforesaid verdict became the subject of debate in the House of Lords. Therefore, it was determined to take the opinion of all the judges on the law governing such cases. Five questions were subsequently put to the Law Lords. The questions as well as the answers delivered by Lord Chief Justice Tindal were as under:- "Q.1 What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing a revenging some supposed grievance or injury, or of producing some public benefit? Answer "Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land. Q.2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? Q.3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed? Answers - to the second and third questions That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put as to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require. Q.4. If a person under an insane delusion as to the existing facts commits and offence in consequence thereof, is he thereby excused? Answer The answer must, of course, depend on the nature of the delusion, but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self-defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. Q.5. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. Q.5. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time? Answer We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right." A comparison of answers to question no. 2 and 3 and the provision contained in Section 84 of the IPC would clearly indicate that the Section is modeled on the aforesaid answers.” 25. In Surender Mishra v. State of Jharkhand, (2011) 11 SCC 495 , the apex Court held as under: “11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code. (Emphasis supplied) 26. Plea of insanity or defence set up by the accused has to be examined in the light of aforesaid decisions and settled principles of law. 27. Significantly, in his statement, recorded under the provisions of Section 313 of the Code of Criminal Procedure, accused did not take any defence of insanity. In fact he pleaded innocence and false implication. None of the prosecution witnesses admit that accused was undertaking medical treatment, on account of his mental illness, from Dr. Virender Mohan (DW-1), Psychiatrist in the hospital at Dharampur, District Solan. 28. Dr. Virender Mohan is examined in Court as DW-1. He is a private practitioner. He is not an expert. Be that as it may, he states that accused remained under his treatment, as an indoor patient, between 6.1.2003 and 11.1.2003. Accused was treated for illness (paranoid schizophrenia, delusional disorder). Accused was in an acute state of mental disorder. Now significantly, doctor admits that first episode of mental disorder was observed only two weeks prior to his examining the accused, who at that time was restless, moving in and out, laughing to himself and would stand for long time in the corridor. He would say that people of the village are burning his body and wind is coming out of his body. Doctor prepared summary sheet (Ex. DW-1/A). Now significantly, doctor admits that at the time of discharge accused had shown some improvement, though he was not fully recovered. He would say that people of the village are burning his body and wind is coming out of his body. Doctor prepared summary sheet (Ex. DW-1/A). Now significantly, doctor admits that at the time of discharge accused had shown some improvement, though he was not fully recovered. But significantly, he does not know as to whether accused had recouped from his mental illness or not. He did not find the accused to be violent. Crucially, this witness admits that there is no evidence of neurological disorder. 29. Incident in question took place on 15.2.2003 and accused had shown signs of improvement at the time of his discharge. Through the testimony of Dr. Ramesh Kumar (DW-3), no doubt, it stands proved on record that accused had been undergoing treatment for his mental illness at the Government hospital (IGMC), Shimla, but then there is nothing on record to establish about the mental health and condition of the accused between 11.1.2003 and 18.2.2003, the day when he was examined by DW-3. What was his state of mind at the time of commission of offence remains unexplained. 30. Great stress is laid on the testimony of Dr. Vijay Kumar (DW-2) and DW-3, who also examined the deceased. It was not disclosed to the doctors as to who had inflicted the blow on the head of the deceased. Testimony of this witness, in the backdrop of stand taken by the accused before us, pales into insignificance. In any event, there is sufficient ocular evidence on record to establish the fact that accused gave a blow on the head of the deceased with an axe. 31. When one examines the testimony of Sohan Lal (DW-5), father of the accused, we find his version not to have proved the case of the accused, in any manner. He only corroborates what is deposed by DW-1, but crucially in his cross-examination, admits that he did not make any complaint about the mental state of the accused, either to the police or the Panchayat. No complaint under the Mental Health Act, 1987 was ever lodged before any competent Court of law. He only corroborates what is deposed by DW-1, but crucially in his cross-examination, admits that he did not make any complaint about the mental state of the accused, either to the police or the Panchayat. No complaint under the Mental Health Act, 1987 was ever lodged before any competent Court of law. The witness admits that factum of illness of the accused, who uttered certain words, accepting his mental state, in the presence of local residents, yet none has been produced or examined by him in Court, except for Prem Singh (DW-6), who is the brother-in-law of the accused and whose testimony, in our considered view, does not probablize the defence of the accused or prove his defence. 32. Quite apparently, accused has not been able to examine any witness, or produce any credible evidence, establishing the plea of insanity as on the date of commission of crime. Thus, the essential ingredients, as is so required, under the provisions of the Indian Penal Code and the Indian Evidence Act, not having been established on record, defence of the accused cannot be said to have been probablized or proved. 33. From the material placed on record, it stands established by the prosecution, by leading clear, cogent, convincing and reliable piece of evidence, that accused trespassed into the house of Pyare Lal (PW-6), having made preparation of causing murder of deceased Kala Devi and thereafter murdered her. 34. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.