REPORTABLE

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO.177 OF 2006

SURENDERA MISHRA             .... APPELLANT

VERSUS

STATE OF JHARKHAND           ..... RESPONDENT

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

1.  Sole appellant was put on trial  for commission of the  

offence under Section 302 of the Indian Penal Code as also  

Section 27 of the Arms Act. The trial court held him guilty on  

both the counts and sentenced him to undergo imprisonment  

for  life  under Section 302 of  the Indian Penal  Code but no  

separate sentence was awarded under Section 27 of the Arms  

Act.  His conviction and sentence has been upheld by the High  

Court in appeal and hence the appellant is before us with the  

leave of the Court.

2. According to the prosecution, on 11th of August, 2000 the  

deceased Chandrashekhar Choubey was going in a car driven  

by PW.1, Vidyut Kumar Modi and when reached Chas Nala  

crossing, he asked the driver to stop the car and call Shasdhar  

Mukherjee  (PW.2),  the  owner  of  Sulekha  Auto  Parts.  As  

directed, the driver called said Shasdhar Mukherjee and the  

deceased started talking to him from inside the car.  According  

to the prosecution all of a sudden the appellant, the owner of  

the  Medical  Hall  came  there  with  a  country-made  pistol,  

pushed Shasdhar  Mukherjee  aside  and fired  at  point-blank  

range at the deceased.  The driver fled away from the place of  

occurrence and informed the family members of the deceased,  

leaving  the  deceased  in  the  car  itself.  PW.4,  Vinod  Kumar  

Choubey  along  with  the  driver  came  back  and  rushed  the  

deceased to  the  Chas Nala  Colliery  Hospital,  where  he  was  

declared  dead.  On the  basis  of  the  aforesaid  report  a  case  

under Section 302 of the Indian Penal Code and Section 27 of  

the Arms Act was registered against the appellant.  After usual  

investigation police submitted the charge-sheet and ultimately

the  appellant  was put  on trial  for  commission of  the  

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offence  under  Section  302  of  the  Indian  Penal  Code  and  

Section 27 of the Arms Act.

3. In  order  to  bring  home  the  charge  the  prosecution  

altogether examined nine witnesses besides a large number of  

documents were exhibited.  Only plea of the appellant during  

the trial was that by virtue of unsoundness of mind, the act  

done by him comes within general exception under Section 84  

of the Indian Penal Code and, therefore, he cannot  be held  

guilty for the act done by him.  The aforesaid plea did not find  

favour  with  the  trial  court  as  also  by  the  High  Court,  in  

appeal.  In  this  connection  the  High  Court  has  observed  as  

follows:

“On the basis of the evidence, adduced on behalf of  both the parties regarding mental status of accused  Surendra  Mishra,  learned  court  below  came  to  a  safe conclusion that accused was not suffering from  mental instability even prior to the incident or at the  time of incident.  I also find no ground to differ with  such finding.  

I have noticed the observations of the learned  court  below  that  although  some  evidence  were  placed  by  the  defence  in  support  of  the  mental  trouble of the accused, in absence of specific finding  by  the  doctor  or  degree  and  nature  of  mental  trouble,  it  can  not  be  relied  upon  to  declare  the  accused Surendra Mishra mentally unfit or that he  was insane at the time of occurrence.”

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4. Mr.  Tanmaya Agarwal,  learned Counsel  appearing  

on  behalf  of  the  appellant  submits  that  the  appellant  

being  a  person  of  unsound  mind  at  the  time  of  the  

commission of the offence, his act comes within general  

exception  as  provided  under  Section  84  of  the  Indian  

Penal  Code  and  hence  the  appellant  deserves  to  be  

acquitted.  In support  of  the submission he has placed  

reliance on a judgment of this Court in the case of State  

of Punjab v. Mohinder Singh, (1983) 2 SCC 274,   in  

which it has been held as follows:

“The  doctor  had  examined  accused  a  little  before as also a little after the occurrence and  he  was  found  insane.   The  detailed  reasons  given  by  both  Dr.  Harbans  Lal  and  Dr.  Ramkumar  have  been  corroborated  by  each  other.  From the evidence also it is clear that  he  was  talking  in  a  very  unusual  manner  saying things  to  the  effect  that  he  had seen  Lord  Shiva  in  front  of  him and  the  alike.  It  cannot  be  said  that  the  finding  of  the  High  Court  was  wrong.   In  view  of  these  circumstances we are not in a position to take  a different view particularly when the appellant  was suffering from schizophrenia.”

5. Another  decision  of  this  Court  on  which  reliance  

has been placed is in the case of  Shrikant Anandrao  

Bhosale v. State of Maharashtra, (2002) 7 SCC 748,  

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and  our  attention  has  been  drawn  to  the  following  

passage from paragraph 20 of the judgment:

“In  the  present  case,  however,  it  is  not  only  the  aforesaid  facts  but  it  is  the  totality  of  the  circumstances seen in the light of the evidence on  record  to  prove  that  the  appellant  was  suffering  from paranoid schizophrenia.  The unsoundness of  mind before and after the incident is a relevant fact.  From  the  circumstances  of  the  case  clearly  an  inference  can  be  reasonably  drawn  that  the  appellant was under a delusion at the relevant time.  He was under an attack of the ailment. The anger  theory  on  which  reliance  has  been  placed  is  not  ruled  out  under  schizophrenia  attack.  Having  regard to the nature of burden on the appellant, we  are of the view that the appellant has proved the  existence of circumstances as required by Section  105 of the Evidence Act so as to get the benefit of  Section  84  IPC.  We  are  unable  to  hold  that  the  crime was committed as a result of an extreme fit of  anger. There is a reasonable doubt that at the time  of  commission  of  the  crime,  the  appellant  was  incapable  of  knowing  the  nature  of  the  act  by  reason of unsoundness  of  mind  and,  thus,  he  is  entitled to the benefit of Section 84 IPC. Hence, the  conviction and sentence of the appellant cannot be  sustained.”

6. Nobody  had  appeared  on  behalf  of  the  respondent.  

However,  we  have  perused  the  records  and  bestowed  our  

consideration to the submission advanced by Mr. Agarwal and  

we do not find any substance in the same.  In view of the plea  

raised it is desirable to consider the meaning of the expression  

“unsoundness  of  mind”  in  the  context  of  Section 84 of  the  

Indian  Penal  Code  and  for  its  appreciation,  we  deem  it  

expedient to reproduce the same.  It reads as follows:

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“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.”

Section 84 of the Indian Penal Code is found in its Chapter IV,  

which deals with general exceptions.   

7. From a plain reading of the aforesaid provision it is evident  

that an act will not be an offence,  if done by a person who,  

at the time of doing the same by reason of unsoundness of  

mind, is incapable of knowing the nature of the act, or what  

he is doing is either wrong or contrary to law. But what is  

unsoundness  of  mind?  This  Court  had  the  occasion  to  

consider  this  question  in the case of  Bapu alias Gujraj  

Singh v. State of Rajasthan, (2007) 8 SCC 66, in which  

it has been held as follows:

“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,  

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cannot be sufficient to attract the application  of this section.”

8. The  scope  and  ambit  of  the  Section  84  of  the  Indian  

Penal Code also came up for consideration before this Court in  

the case of  Hari Singh Gond v. State of Madhya Pradesh,  

(2008) 16 SCC 109 = AIR 2009 SC 31 in which it has been  

held as follows:

“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.”  

9. 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  

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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.

10. 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  

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condition by production of medical evidence and other relevant  

factors.  Even if the accused establishes unsoundness of mind,  

Section  84  of  the  Indian  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, (2002) 1 SCC 219, in which it has been held as  

follows:

“9. 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.

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10. In  State  of  M.P. v.  Ahmadull,AIR  1961  SC  998, 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.

11. In a case where the exception under Section  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.”

11. In the background of what we have observed above, we  

proceed to consider the facts of the present case.  The first  

evidence in regard to the unsoundness of mind  as brought by  

the appellant is the medical prescription dated 18th October,  

1987 (Ext. A-1) in which symptom of the appellant has been  

noted as psychiatric with paranoid features and medicine was  

advised for sleep.  Other prescriptions are dated 9th January,  

1988  (Ext.  A)  and  5th of  September  1998  in  which  only  

medicines have been prescribed.  Other prescriptions (Exts. A-

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5 to A-7) also do not spell out the disease the appellant was  

suffering but give the names of the medicines, he was advised  

to  take.  The occurrence had taken place  on 11th of  August  

2000.  From these  prescriptions,  the  only  inference  one can  

draw is that the appellant had paranoid feeling but that too  

was not proximate  to the date  of  occurrence.   It  has to be  

borne in mind that to establish that acts done are not offence  

and come within general exception it is required to be proved  

that at the time of commission of the act, accused by reason of  

unsoundness of mind was incapable of knowing that his acts  

were  wrong  or  contrary  to  law.   In  the  present  case  the  

prosecution  has  proved  beyond  all  reasonable  doubt  that  

immediately after the appellant had shot- dead the deceased,  

threatened  his  driver  PW.1,  Vidyut  Kumar  Modi  of  dire  

consequences. Not only that, he ran away from the place of  

occurrence and threw the country-made pistol, the weapon of  

crime, in the well in order to conceal himself from the crime.  

However, it was recovered later on.  The aforesaid conduct of  

the  appellant  subsequent  to  the  commission  of  the  offence  

clearly  goes to suggest  that  he  knew that  whatever  he  had  

done  was  wrong  and  illegal.  Further,  he  was  running  a  

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medical shop and came to the place of occurrence and shot  

dead  the  deceased.  Had  the  appellant  been  a  person  of  

unsound mind, it may not have been possible for him to run a  

medical shop.  We are of the opinion that the appellant though  

suffered from certain mental instability even before and after  

the incident but from that one cannot infer on a balance of  

preponderance of probabilities that the appellant at the time of  

the commission of the offence did not know the nature of his  

act;  that  it  was  either  wrong  or  contrary  to  law.   In  our  

opinion, the plea of the appellant does not come within the  

exception contemplated under Section 84 of the Indian Penal  

Code.  

12. As regards  the decisions  of  this  Court  in  the  cases  of  

Mohinder Singh (supra) and Shrikant Anandrao Bhosale  

(supra),  relied  on  by  the  appellant  same  are  clearly  

distinguishable. In those decisions, this Court on fact found  

that  the  accused  at  the  time  of  commission  of  crime  was  

suffering from Schizophrenia and in that background held that  

accused is entitled to the protection under Section 84 of the  

Indian  Penal  Code.  Here  on  fact,  we  have  found  that  the  

appellant was not suffering from unsoundness of mind at the  

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time of commission of the crime and therefore the decisions  

relied on in no way advance the case of the appellant.  

13. We  do  not  find  any  merit  in  the  appeal  and  it  is  

dismissed accordingly.

…………………...........................J      [HARJIT SINGH BEDI]

…………………...........................J        [P. SATHASIVAM]

 ................................................J

    [CHANDRAMAULI KR. PRASAD] NEW DELHI JANUARY  6, 2011.

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