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Wangdi, J.—This Revision Petition seeks to assail the impugned judgment dated 30-04-2012 passed by the Learned Sessions Judge, Special Division - I, Sikkim at Gangtok in Criminal Appeal Case No. 01 of 2011 by which the judgment and order of sentence dated 05-05-2010 of the Learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, in G.R. Case No. 50 of 2006 convicting the Revisionist u/s 326 of the Indian Penal Code (in short "IPC) was upheld by dismissing the Appeal filed by the present Revisionist. The Revisionist had been tried in G. R. Case No. 50 of 2006 on being sent up for trial by the Ranipool Police under Ranipool Police Case No. 09(4)06 dated 03�04-2006 under Sections 498A/284/325 of the IPC based upon an investigation arising out of a FIR dated 03-04�2006 filed by P.W. 1, Bhagwan Prasad Saha, the father of the Revisionist, stating that on that day at about 7/7.10 p.m. the Revisionist had poured acid over his wife, Rinku Devi, resulting in the right side of her face being severely burnt and was in a critical condition and had to be evacuated to the Central Referral Hospital, Tadong, Gangtok (in short "CRH") for treatment. On completion of the investigation, the Revisionist was found prima facie guilty of having committed the offences aforesaid and the Learned Chief Judicial Magistrate before whom he was tried, ultimately found him guilty of commission of the offence u/s 326 IPC and accordingly convicted and sentenced to undergo simple imprisonment for 3 years and to pay a fin e of Rs. 5,000/-and in default to go simple imprisonment for a period of one more month.
As observed earlier, on Appeal the impugned judgment of the Learned Trial Court was upheld by the Learned Sessions Judge, Special Division - I. Delving further into the facts of the case is felt unnecessary as being immaterial for the purpose of disposing of the Revision Petition since in the present proceeding the parties have proceeded on an admitted position as regards the merits of the decisions of both the Learned Trial Court and the Learned Appellate Court and have confined themselves to a very limited question as regards the non�consideration of the plea of insanity u/s 84 IPC raised by the Revisionist both at the trial as well as before the Learned Appellate Court. Having thus set out the question for determination, I may now deal with the plea raised on behalf of the Revisionist.
3(i). Mr. Zangpo Sherpa, Learned Advocate, appearing on behalf of the Revisionist, submits that the findings of the Learned Trial Court as well as Learned Appellate Court on the plea of insanity is perverse and is in conflict with the glaring evidence apparent on the face of the record. It is his case that the fact that the Revisionist was of unsound mind and was suffering from mental disorder was established by the prosecution witnesses themselves. Reference was made to the evidence of -
(i) P.W. 3, Lalita Devi, the mother of the Revisionist, when she stated that -
.... The accused after he met with an accident in the year 2002 was under treatment at Manipal hospital...
(ii) P.W. 6, Rajesh Saha, the brother of the Revisionist, when he stated that -
... It is true my brother had met with an accident in the year 2002 and was undergoing treatment at Manipal hospital. It is true that accused also under went (sic) treatment for surgery and later he went to see a psychiatric (sic) doctor"; and
(iii) P.W. 7, Rama Shankar, father-in-law of the Revisionist, to the effect that -
....... It is true that accused had come to my house to take my daughter back and told me that he will live separately with my daughter but the parents of accused did not wants to take the responsibility of my daughter after the accused and my daughter starts living separately on the pretex (sic) that the accused is not mentally fit and might commit the offence again. I heard from the people that accused takes drugs tablets and he is under the influence of the drugs. I also heard that accused had some mental problem after he met with an accident. ..................
It is further submitted that during the course of the trial the Investigating Officer (in short "I.O") of the case had on his own referred the Revisionist for medical examination to the CRH as regards his mental condition and, by the Doctor''s report Exhibit B there is clear evidence of the Revisionist suffering from a mental disorder for the past 4-5 years.
(ii) That although this fact was in the knowledge of the I.O. he failed to bring it to the notice of the Learned Trial Court in order to enable it to act in terms of Section 329 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") and the subsequent provisions under Chapter XXV thereof causing grave prejudice to the Revisionist. It is his submission that by the Admission Record of the CRH, Exhibit C, the final diagnosis of the Revisionist''s ailment has been clearly indicated as "Paranoid Schizophrenia". That the I.O. having failed to act fairly, the Revisionist in his interest on his own placed this fact along with the relevant hospital records before the Learned Trial Court but, the Learned Trial Court did not act as per the procedure prescribed under Chapter XXV Cr.P.C. The factum of Revisionist suffering from the ailment of "Paranoid Schizophrenia" is corroborated by the Psychiatrist at the STNM Hospital, Gangtok who examined and treated him in pursuance of this Court''s Order dated 03-08-2012 in Bail Appln. No. 04 of 2012. Mr. Zangpo Sherpa sought leave of this Court to place the prescription card, in original.
(iii) Referring to paragraph 25 of the judgment of the Learned Trial Court, it was submitted by Mr. Sherpa that the rejection of the opinion Exhibits B and C of doctor at CRH for the Revisionist having failed to examine the Psychiatrist was bad in law and, therefore, it deserved interference. Similarly, the finding of the Learned Appellate Court at paragraph 17 of its judgment suffered from the same vice. As per the Learned Counsel the findings were clearly in conflict with the decision of this Court in the matter of Tshering Lepcha vs. The State of Sikkim : 2010 SLJ 36, more particularly, paragraphs 20 and 21 thereof. He further went on to submit that Chapter XXV Cr.P.C. contemplates consideration of the mental condition of an accused during the entire period from its commencement and during the course of the trial. The material fact of the Revisionist suffering from "Paranoid Schizophrenia" which had been brought to the notice of this Court ought to have received the mandatory attention by the Learned Trial Court and the consequential procedure necessarily to be followed by it. It was strongly urged by him that although the burden of establishing that the case of the Revisionist would fall u/s 84 IPC lay upon him, such burden was not as rigorous as would be upon the prosecution. Preponderance of probability was all that was required to be established by him unlike the prosecution which had to prove its case against the Revisionist beyond all reasonable doubts. In support of his submission he relied upon the decision of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat : 1964 (2) Cri.L.J. 472, relevant portion of which is reproduced below:-
(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 accused was not insane, when he committed the crime, in the sense laid down by S. 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.
(iv) He further submitted that presumption of non�existence of circumstances bringing the case against an accused within any of the General Exception in the Indian Penal Code is upon him but, it is a settled law that it is only after considering the matters before it, that a Court would believe that the said circumstances existed or their existence was so probable that a prudent man ought to act upon the supposition that they did exist. This was the proposition laid down in the case of Dahyabhai (supra) and the Learned Counsel laid great stress upon the expression "prudent man" and re-emphasised the observation in the above case that "if the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man" the accused will have discharged his burden.
(v) In order to buttress his submission of the failure of the Learned Trial Court to consider the medical reports, Exhibits A, B and C, disclosing the ailment suffered by the Revisionist, the Learned Counsel cited the case of Siddhapal Kamala Yadav Vs. State of Maharashtra, more particularly the following portion:-
u/s 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution has not to establish these facts.
(vi) The findings of the Courts below that non- examination of the Psychiatrist who examined the Revisionist in the CRH, displaced the presumption that the Revisionist suffered from "Paranoid Schizophrenia", is erroneous as examination of the doctor was not an essential requirement in the face of the other evidence available in the records and in view of the fact that the contents of the medical report and the signature of the Psychiatrist had been proved by another doctor who was examined as the only defence witness by the Revisionist. A Division Bench judgment of the Delhi High Court in the case of Mohd. Islam Vs. State (NCT of Delhi), more particularly the following portion was referred to in support of his contention:-
So far as the question of non�appearance of Dr. Neeraj Gupta is concerned, his signatures on MLC Ex. PW-1/A stood proved by the testimony of Mr. A. R. Mathew (PW-1) i.e. record clerk, LNJP Hospital. As per Mr. Mathew (PW-1), Dr. Neeraj Gupta and Dr. Neeraj Kalra left their jobs and their whereabouts were not available nor known. In these circumstances, prosecution examined Mr. A. R. Mathew (PW-1) to prove the signatures of Dr. Neeraj Gupta and that of Dr. Kalra. Mr. Mathew was acquainted with their signatures. He identified the signature of Dr. Neeraj Gupta on the MLC Ex. PW-1/A at point "A". since the doctor was not available and his whereabouts were not known, it does not mean the statement recorded by the said doctor would become a waste paper. In the absence of the said doctor prosecution was left with no alternative but to prove his statement either by examining another doctor and if no other doctor acquainted with his signature then through the testimony of the person who was acquainted with the doctor''s signature who had seen him writing and signing. Mr. A. R. Mathew (PW-1) was such a person.
(vii) As per the Learned Counsel, the established facts and circumstances entitled the Revisionist to a reduction in the sentence to the period of 9 months already undergone by him in judicial custody. Apart from this, it was pleaded that the Revisionist had been all along regular during the trial. That he had made up with his family, had got re-married during the period of the trial begetting a child thereby and that he required regular treatment for his mental disorder.
4(i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand, submitted that the Revisionist had failed to establish that he was entitled to the benefit of Section 84 IPC and that there was no error in the impugned judgment that called for interference by this Court. It was submitted that none of the witnesses have stated anything to indicate the mental illness from which the Revisionist claimed to have been suffering from. P.W. 1, Bhagwan Prasad Saha, who is the father of the Revisionist, is absolutely silent on this and had instead stated categorically that it was the Revisionist who poured acid on the victim''s face and that it was he who filed the FIR, Exhibit 1, that led to the investigation against the Revisionist. There is also nothing in the evidence of P.W. 3, Lalita Devi, the mother of the Revisionist that indicates the mental condition as is being set up by him. Reference to the specific sentence in the cross�examination relied upon on behalf of the Revisionist reproduced above, it was submitted that it does not in any manner reflect such fact but only that the Revisionist had met with an accident in the year 2002 and was treated at the CRH. As regards the reference made on behalf of the Revisionist to the evidence of P.W. 6, Rajesh Saha, the brother of the Revisionist, the Learned Additional Public Prosecutor, urged that the portion of the evidence was of no consequence being quite vague and not measuring up to the desired standard. None of the neighbours who appeared as prosecution witnesses, namely, P.W. 4 and P.W. 5, have stated anything that even remotely suggest that the Revisionist suffered from the mental condition as claimed by him. That the evidence of P.W. 7, Rama Shankar, the father-in-law of the Revisionist, also suffered from the same vice of vagueness and was rather a hearsay evidence and unreliable. On the contrary, as per Learned Additional Public Prosecutor, the very wife of the Revisionist, Rinku Devi, who appeared as P.W. 8, has categorically denied that her husband was mentally not sound and that the unambiguous, categorical and vivid description of the manner in which she had been dealt with by the Revisionist, i.e, coming from behind, closing her mouth and pouring acid on her, undeniably and undoubtedly prove that the Revisionist was in full senses and in his normal condition and had acted in a designed manner pre-determined to put her to death. The wife being the best witness, her evidence overwhelmingly displaces any room for doubt as to the culpability of the Revisionist.
(ii) It was then submitted that the medical reports, Exhibits A, B and C, that were produced by the Revisionist during the advanced stage of the trial was undoubtedly procured as a means of defence and was an afterthought. Even otherwise, the medical report considered in its entirety was not sufficient to show that at the time of commission of the offence the Revisionist was insane and incapable of understanding the nature and consequences of his act. In support of his submission reference was placed upon the case of Sudhakaran Vs. State of Kerala, more particularly the following:-
As far as the defence u/s 84 is concerned, we also see no reason to differ with the opinion expressed by the trial court as also the High Court. The evidence given by DW 1, Assistant Surgeon of Idduki District Hospital has been rightly discarded by the High Court. It is true that DW 1 had stated on the basis of the out-patient register that the appellant had come for consultation. However, no records were produced as to what treatment had been given to him. Even the out-patient ticket was not produced. Ultimately, this doctor admitted that he cannot say that the appellant had come there for psychiatric treatment. He did not even remember the medicine which had been given to the appellant.
Similarly, the evidence of Superintendent of Jail, DW 2 also only indicates that the appellant had been sent to Medical Health Centre. Even the evidence of the Health Centre was incomplete and wholly unreliable. The entire medical evidence produced was not sufficient to show that at the time of the commission of the murder the appellant was medically insane and incapable of understanding the nature of the consequences of the act performed by him.
The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purposes of claiming the benefit of the defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act.
(iii) On the above proposition, the Learned Additional Public Prosecutor also cited the case of Elavarasan Vs. State rep. by Inspector of Police, . In the present case the Revisionist had examined Dr. Sanjiba Dutta, as the only defence witness to prove the medical reports, Exhibits A, B and C, but his evidence was inconsequential as being vague, irrelevant and not connected with the case at hand but, with the case of the Revisionist inflicting wound on his own hand with a knife on 18-05-2007, i.e., more than a year after the commission of the offence.
(iv) The Learned Additional Public Prosecutor further went on to submit that the designed manner in which the Revisionist had perpetrated the offence can reasonably inferred from the fact of his taking pains to purchase concentrated sulphuric acid, then returning to his house, closing the mouth of the victim after catching hold of her from behind and then pouring acid over her, totally belied the plea of insanity. The motive of the Revisionist in committing the act was clearly deducible from those sequence of events. Reference was placed upon the case of State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, the relevant portion of which are reproduced below:-
To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour.
In Surendra Mishra v. State of Jharkhand, the Court was dealing with a case where the accused was charged for an offence u/s 302 IPC and Section 27 of the Arms Act. While denying the protection of Section 84 IPC to the accused, the Court held as under: (SCC pp.499-500, para 11)
In our opinion, an accused who seeks exoneration from liability of an act u/s 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression ''unsoundness of mind'' has not been defined in the 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 Penal Code.
From the abovestated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.
(v) It was further submitted that the falsity of the plea was also revealed by the fact that the Revisionist had remained silent on the plea of insanity throughout the period of the trial, i.e., from the stage of framing charge till his statement was recorded u/s 313 Cr.P.C.
(vi) Finally, it was submitted that the present Revision Petition was not maintainable in the facts and circumstances and in view of the concurrent findings on the question by the Learned Trial Court and the Learned Sessions Court and that there is neither an error of fact nor of law found to have been committed by the Courts below. That by filing the present Revision Petition, the Revisionist was attempting to get the matter re-heard by this Court and re-appreciate the evidence which ordinarily would not be permissible unless any glaring feature is brought to its notice or which otherwise would result in gross miscarriage of justice. The Learned Additional Public Prosecutor referred to the case of Raj Kumar Vs. State of H.P., the relevant portion of which is reproduced below:-
In State of Orissa v. Nakula Sahu it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the trial court or the Sessions Judge.
In State of Kerala v. Puttumana Illath Jathavedan Namboodiri it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
5(i). I have given careful consideration to the question canvassed before this Court on behalf of the parties and the evidence in the records. It is a settled position that a Revisional Court shall hesitate to interfere in a case where there are concurrent findings of the Courts below unless an extra-ordinary case is made out where special circumstances exist or the findings are perverse. Keeping in view this position and in the interest of justice, this Court permitted the Counsel for the Revisionist to make his submissions at length to show as to whether any special circumstances was made out or if it could be said that the impugned judgment suffered from perversity on the facts set out by him as noted earlier and, I am not impressed that any such case is made out for the reasons that shall follow hereafter.
(ii) As submitted on behalf of the Learned Additional Public Prosecutor and also as found by the Learned Appellate Court, the plea of insanity u/s 84 IPC was raised only at an advanced stage of the trial on the basis of an incident of self-infliction of wound in his hand by the Revisionist resulting in the I.O. of the case forwarding him to the CRH for medical examination. Although not a part of the evidence, I have examined Exhibit B and find that it is a record of examination of the Revisionist by the Psychiatrist which contain the symptoms as narrated by the former. Most surprisingly each of the symptoms fit most perfectly with the necessary medical ingredient of a person suffering from "Paranoid Schizophrenia". From this two conclusions can be deduced of which, the first one being that the entire episode of medical examination was concocted for the Revisionist to raise the plea of insanity and, the second being that the Revisionist contracted the ailment at about the time when he inflicted upon himself the knife wound. Considering the facts and circumstances, in my view, both the inferences are possible.
(iii) The first inference referred to above can be deduced from the fact that there is nothing on record to suggest that Revisionist suffered from the mental disorder except for the deposition of D.W.1, Dr. Sanjiba Dutta, whose evidence do not find support in any other evidence including the prosecution witnesses who were the close relatives of the Revisionist, namely, P.W. 1, the father, P.W. 2, the sister, P.W. 3, the mother, P.W. 6, the brother, P.W. 7, father-in-law of the Revisionist and P.W. 8, his wife, except to the extent deposed by them duly noted earlier while dealing with the submissions made by the Learned Counsel on behalf of the Revisionist. In the light of the evidence of these prosecution witnesses, the evidence of D.W.1 appears to be conspicuously discordant and incongruous. The second inference noted above can be reasonably drawn from the fact that the Revisionist appears to have demonstrated the symptom of the mental disorder much after the offence committed by him and, therefore, his act of commission of the offence cannot be said to be on account of such mental disorder which he appears to have attempted to show.
(iv) The question that arises is that was the Revisionist successful in discharging the burden of proof in respect of the plea of insanity which lies upon him. In Bapu @ Gajraj Singh Vs. State of Rajasthan, it has been held that the crucial point of time for deciding whether the benefit of Section 84 IPC should be given or not, is the material time when the offence takes place. Since the principle of law governing Section 84 IPC has been most succinctly discussed and laid down in that case it is felt appropriate to deal with it in extenso. The relevant portions of the judgment are set out as under:-
Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in the IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on an accused to prove his insanity, which arises by virtue of Section 105 of the Evidence Act, 1872 (in short "the Evidence Act") and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. (See Dahyabhai Chhaganbhai Thakkar v. State of Gujarat). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarises them as follows:
Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detections, whether after his arrest, he offered false excuses and made false statements. All facts of this sort are material as bearing on the test, which Bramwall, submitted to a jury in such a case: ''Would the prisoner have committed the act if there had been a policeman at his elbow? It is to be remembered that these tests are good for cases in which previous insanity is more or less established.
These tests are not always reliable where there is, what Mayne calls, "inferential insanity".
u/s 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts.
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.1, p.105; 1 Hale''s Pleas of the Crown 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, 12th 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.
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).
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, Vol. II, p. 166 has observed that if a person cuts 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 recognises 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 Mohd. v. State of Maharashtra held that: (SCC p.79)
The mere fact that no motive has been proved why the accused murdered his wife and children 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 commission of the offence.
Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection u/s 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 those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M''Naughton''s case. 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. 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.
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 mine]
(v) Similarly, in the case of Surendera Mishra Vs. State of Jharkhand, in which reliance has been placed inter alia in the case of Bapu (supra) it has further been held as follows:-
The scope and ambit of Section 84 of Penal Code also came up for consideration before this Court in Hari Singh Gond v. State of M.P. in which it has been held as follows: (SCC pp. 111-12, para 10)
''17. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.''
In our opinion, an accused who seeks exoneration from liability of an act u/s 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the 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 Penal Code.
The next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind.
In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him.
Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah v. State of Karnataka, in which it has been held as follows: (SCC p. 224, paras 9-11)
Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
In State of M.P. v. Ahmadulla this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV.
In a case where the exception u/s 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought.
[Emphasis mine]
(vi) Keeping the above principle of law in view and the fact that the Revisionist had inflicted wound on his own hand it may be presumed that the Revisionist had a fit of insanity notwithstanding the doubt expressed earlier. But, this by itself is not sufficient to attract the application of Section 84 IPC.
(vii) As held in the case of Surendra Mishra (supra) even if the Revisionist is assumed to have established unsoundness of mind Section 84 IPC will not come to his rescue as it is established by the evidence that he knew that what he was doing was wrong and contrary to law. It is in the evidence of P.W. 5 that the Revisionist is a business man and also used to drive vehicle for some time and, as per the evidence of P.W. 6 he has a business in Siliguri. The evidence, therefore, unequivocally establish that before and at the time of commission of the offence the Revisionist was in perfect mental condition and was acting as a normal person of prudence. As pointed out by the Learned Additional Public Prosecutor, the manner in which the offence was committed by the Revisionist and his plea of having committed the offence as a consequence of his mental disorder is difficult to be reconciled as it is not expected of a person suffering from "Paranoid Schizophrenia" to meticulously plan to assault the victim in the manner that we find in present case. His deliberate and wilful purchase of concentrated sulphuric acid which he poured over his wife by holding her from behind closing her mouth, in my view, cannot be taken as an act of a person suffering from such mental abnormality. Taking in view the entirety of the evidence, I rather find that the act of the commission of the offence was a pre�planned one there being a marital discord between the Revisionist and his victim wife. I may refer to the evidence of P.W. 7, Rama Shankar, the father-in-law of the Revisionist, where in his cross-examination it has been deposed as follows:-
.... It is true in my statement I have stated to the police that till today my daughter Rinku has not told me the reason as to why accused pour acid on her. It is true I did not witnessed (sic) the accused pouring acid on my daughter in their house. It is true that accused had come to my house to take my daughter back and told me that he will live separately with my daughter but the parents of accused did not wants to take the responsibility of my daughter after the accused and my daughter starts living separately on the pretex (sic) that the accused is not mentally fit and might commit the offence again........
I may also refer to the evidence of his wife, Rinku Devi, P.W. 8, who in her cross-examination has stated that-
It is true accused keep used to tell me that he would kill me and throw acid on me. (sic) ..........
Following the principle laid down in Bapu (supra) in paragraph 10 reproduced above the intent and act of the Revisionist have definite nexus and concur, unlike in the case of an insane person as being claimed by him.
(viii) It is an admitted position on behalf of the Revisionist, as we find from pleadings in the Revision Petition, that he got re-married after being released on bail by the Learned Trial Court, i.e., a period of just over three months of his arrest, i.e., between 03-04-2006 and 12-07-2006, and has an issue from the marriage. We may refer to ground (xliv) set out in the Revision Petition which is reproduced below:
(xliv)For that the revisionist after being released on bail has entered into a new married life and has been blessed with a baby. Further he is trying to make his family living by doing business which is solely run by him. Therefore it will be iniquitous to direct the revisionist to undergo actual sentence at this stage. The photocopy of the birth certificate is annexed as Annexure P-7.
When the Revisionist moved his Bail Application on 03-08-2012 before this Court the primary ground asserted was that he was mentally unsound. It was, therefore, felt appropriate to enlarge the Revisionist on bail on the following conditions:-
(i)The petitioner shall be examined by the psychiatrist in the STNM Hospital where he shall undergo treatment as advised.
(ii) The State Respondent shall monitor the treatment of the petitioner.
(iii) He shall not leave Gangtok without the permission of the learned Sessions Judge, Special Division-I who heard the matter finally.
(ix) The prescription card of the Psychiatrist of the STNM Hospital, Gangtok, relied upon on behalf of the Revisionist culminating as a consequence of the above Order of this Court, which the Learned Counsel for the Revisionist had sought leave of this Court to place on record and which the Learned Additional Public Prosecutor in his fairness did not object, also reflects that there is "No active Psychopathology" which the Revisionist suffered from. Dr. C. S. Sharma, the Psychiatrist who had given the opinion who was present in Court, when asked stated that by that opinion it meant that the Revisionist was normal and had no mental disorder.
(x) Considering the behaviour and conduct of the Revisionist prior to the incident, at the time of the incident and after the incident, it cannot but be held that the plea of insanity was raised is an afterthought. The motive of the Revisionist in assaulting the victim wife also stands clearly established.
(xi) The case of Tshering Lepcha (supra) upon which the Learned Counsel for the Revisionist sought to rely on is clearly distinguishable from the facts and circumstances of the present case. In that case there were at least nine witnesses who had clearly stated that the accused was insane before, at the time and immediately after the commission of the offence. That apart, there were also other relevant factors that clearly indicated the mental disorder of the accused. Such is not the case here as has been clearly demonstrated. The other decisions cited at the bar by the Learned Counsel, in my view, also do not come in aid of the Revisionist, as they are not applicable in the facts and circumstances obtaining in the case at hand.
(xii) Taking into consideration the evidence and the facts and circumstances in the present case, I have no hesitation to hold that the Revisionist has failed to discharge the burden of preponderance of probability in his favour. In any case, both the Learned Trial Court and the Appellate Court have concurrently arrived at their findings by a process of well-grounded reasoning and not perfunctorily and, therefore, I do not think it would be just and proper for this Court to interfere with the findings of fact while exercising its powers in its revisional jurisdiction. The Revision Petition should, therefore, fail.
(xiii) In the above premises, the plea of reduction of sentence as prayed for on behalf of the Revisionist will naturally have to be rejected. The fact that the Revisionist contracted a second marriage during the trial rather lends support to the reasonable inference drawn against him that he intended to put to death his first wife, Rinku Devi.
In the result, the Revision Petition stands dismissed.
No order as to costs.
The Revisionist shall appear before the Learned Chief Judicial Magistrate, East and North Sikkim at Gangtok on 30-08-2012 at 10.30 a.m. and the Learned Chief Judicial Magistrate, East and North Sikkim at Gangtok shall ensure execution of the sentence passed I G. R. Case No. 50 of 2006.
Let a copy of this judgment along with the original records of the case be transmitted to the Learned Chief Judicial Magistrate, East and North Sikkim at Gangtok forthwith by a Special Messenger for its due compliance.
A copy of this judgment be also transmitted to the Learned Sessions Court, Special Division - I, Sikkim at Gangtok. The Learned Additional Public Prosecutor shall convey the above findings and direction to the prosecuting agency for taking necessary steps in terms thereof.