Tilak Ram S/o Shadi Ram vs State of U.P.

Rakesh Tiwari, J.

Heard Sri Apul Misra, learned counsel for the appellant, Sri K.N. Bajpai, learned AGA and perused the record.

Tilak Ram appellant has filed this criminal appeal challenging the validity and correctness of the judgment and order dated 30.7.2007 passed by the Additional Sessions Judge, Court No.2, Meerut in S.T. No. 15 of 1985, State Versus Tilak Ram whereby the appellant was convicted and sentenced to imprisonment for life under Section 302 IPC with a fine of Rs. 10,000/ and in default of payment of fine further ordered to undergo SI for one year and 7 years'' RI with a fine of Rs. 10,000/ under Section 307 IPC and in default of payment of fine further ordered to undergo SI for one year. All the sentences were ordered to run concurrently.

The appeal has been filed on the ground that the conviction against the appellant is against the weight of evidence on record and that the sentence awarded to him is too severe.

This appeal had come up for hearing on earlier occasion and the matter was remanded to the Trial Court for taking additional evidence regarding Section 84 of the IPC. It is after the judgment rendered by the Trial Court after remand that has been challenged in this appeal now.

Accused appellant Tilam Ram son of Shadi Ram resident of village Atta, PS Babu Garh, District Ghaziabad at the relevant time was working as Police Constable No.862 in Police Station Badaut, District Meerut.

The case was committed to the Court of Sessions by the Magistrate vide his order dated 3.1.1985

The genesis of the case is in an incident, which had occurred on 5.11.84 at about 3.35 am. According to the first information report lodged by Incharge Inspector Sri Manvendra Mishra of PS Badaut,District Meerut, when he returned from patrolling duty at about 3.30 am to the police station Badaut, District Baghpat and had gone to the toilet he heard sound of 56 shots of firing from the office of the police station. He immediately ran towards the office where Sri K. P. Singh, constable, driver constable Yashpal and constable Hari, who were on security duty, Head Moharrir Devi Prasad and Junior Clerk etc. had also come to the spot and saw the accused Tilak Ram with rifle in his hand, he turned back and threatened that if any one came near him, he would be killed and fired shot towards first informant Sri Manvendra Singh,S.I. which embedded in the wall behind him. At that time Sri K.P. Singh and others caught Tilak Ram and tried to snatch his rifle but he again managed to fire and said " eq>dks nsoh vkrh gS ojuk lcdks �dk0 QVk� ekj nwaxkA* However, the rifle was snatched from his hand and one empty bullet cartridge was recovered from the barrel gun and magzine loaded with cartridges was also recovered from his possession; that ten empty cartridges were also found from the belt tied by him, apart from 8 empty cartridges which he had fired. The other live cartridges were also found. Sardar Bal Krishna, Harjit Singh, Karnail Singh, Jugendra Singh, Pala and Gurjit Singh had been found injured upon whom accused Tilak Ram had fired. The aforesaid six injured persons were sent to the hospital for treatment, out of whom five injured died.

Recovery memos of rifle, empty cartridges, blood stained blanket, fired bullet, blood stained cement plaster and papers of the prescription of treatment etc. were prepared on 5.11.1984. On 6.11.1984 the room of the accused was searched in which prescription of treatment for schizophrenic was found and memo was prepared.

Charges under Sections 302 and 307 IPC were framed against the accused by the Additional Sessions Judge, Meerut vide order dated 6.7.85 to which he denied and pleaded not guilty and claimed to be tried.

In order to prove its case, the prosecution examined 9 witnesses namely, PW 1,Sri K.P. Singh, PW 2, Constable Yashpal Singh, PW 3, Sri Lakhan Singh, PW 4, Constable Chaukhe Lal, PW 5 Sri Shyam Singh Yadav, PW 6, Dr. B.P. Verma, PW 7 Manvendra Mishra, PW 8, Devi Prasad and PW 9 Sri Rampal Singh.

The Court examined accused Tilak Ram under Section 313 Cr.P.C. On 5.8.1984,who also produced Sri S.N. Dubey on 4.11.93 as DW 1, Dr. R.P. Sharma on 12.1.94 as DW 2, Dr. B.S. Yadav on 7.3.94 as DW 3, Sri Jai Narain Singh on 7.3.94 as DW 4 and Sri Pyare Lal on 24.10.94 as DW 5 in support of his case.

The sole contention of learned counsel for the appellant is that the appellant was of unsound mind at the relevant time of occurrence and was incapable of knowing the nature of his act. According to him,on seeing the Sikh who had taken shelter in the police station the accused suffered from mental pressure. He was seeing the Sikh community made target of public anger in the city as fall out due to killing of late Prime Minister Mrs. Indira Gandhi on 31st October, 1984 by her two Sikh Body guards. Seeing the Sikhs taking shelter in the police station the pressure separated the sanity from insanity and he identified himself with mass of people ventilating their vengeance against the act and found recluse in killing those Sikhs who taken shelter in the police station. He submits that from the reading of the FIR it appears that the accused had uttered that " eq>dks nsoh vkrh gS ojuk lcdks �dk0 QVk� ekj nwaxkA** which shows that he had no grudge or animosity against the deceased persons belonging to a particular community, he had fired upon the injured and the deceased by his rifle in a schizophrenic attack and he was at that time unable to distinguish between wrong and right. Whether the accused appellant was under the sanity or was an insane person is to be seen.

According to the learned counsel for the appellant the motive was lacking as the accused had not attempted to flee away from the place of occurrence after commission of the crime and his threatening to his fellow officers and staff in the police station with dire consequences shows that he was of unsound mind at the time of occurrence. It is stated that the accused had an attack of the disease schizophrenic which is a form of insanity for which he was being treated while in service. This goes to show that he was not in a sane state of mind at the time of committing crime. It is prayed that Court may infer reasonably from the circumstances attending to the occurrence and from the evidence produced by the parties that the accused was not liable to be punished for the commission of the offence as the sane person.

In short, learned counsel for the appellant prays that the accused is entitled to the benefit of Section 84IPC on the ground that there is a reasonable doubt regarding sanity of the accused at the time of commission of the occurrence of the crime.

He has relied upon the decision rendered by the Apex Court in State of Punjab versus Mohinder Singh, 1983 SCC ( Criminal)402 wherein the Court examining Sections 84 and 302 IPC found that the accused was examined before as well as after the occurrence by the two doctors, who found him to be schizophrenic. The Court in that case found the evidence of both the doctors corroborated by each other and abnormal behaviour of the accused was apparent from the evidence on record. In those circumstances, the Court held that the acquittal of the accused by the High Court was proper. From this judgment it is apparent that the accused was suffering from schizophrenic attacks at intervals, which is a form of insanity. Further in that case, the doctor had examined the accused before and after the occurrence and he was found to have been suffering from schizophrenia at the time of occurrence. However, in the instant case it appears from record that applicant had been cured of the disease about a year back and was performing his normal duties in service and he had also been examined by the doctors after the incident.

Learned counsel for the appellant has then relied upon paragraphs 8 and 14 to 20 of the judgment rendered in AIR 1959, Madhya Pradesh 203 ( V 46 and C 64), The State versus Chhotelal Gangadin Cadariya. The Court in paragraph 8 of the judgment has held that all the persons, who have reached the age of discretion are presumed to be sane, and criminally responsible. If in case a person suffers from attacks of insanity after lucid intervals, the law will presume the offence of such person to have been committed by him because of insanity unless he proves that he was schizophrenic at the time of commission of the offence so as not to be liable to punishment as a sane person. After quoting Mayne in the Criminal Law of India in paragraph 15 of the judgment the Apex Court observed that plea of insanity may be examined by the Court broadly under the four heads:

(1)Previous history of the accused;

(2)Nature and character of the crime;

(3)Conduct subsequent to the crime &

(4)Conduct during and after the trial.

After examining the facts of that case under the four broad heads under insanity the Court is to examine the circumstances which may lead to the reasonable inference that the accused was of unsound mind within the meaning of Section 84 of the IPC at the time of commission of the offence. The Court thereafter, examined the conduct of the accused in that case in paragraphs 16 to 20 and came to the conclusion that it was satisfied that the accused was of unsound mind within the meaning of Section 84 of the IPC at the time of commission of the offence and was consequently exempted from the criminal responsibility on that account. The Court declined to confirm the sentence of death passed on the accused, set aside his conviction and the sentence of death passed on him and acquitted him of the charge of murder and ordered the Sessions Judge to take action under Section 471 of the Code of Criminal Procedure and to order the detention of the accused in safe custody in such place and manner as it may think fit.

In the case at hand the Court below has not awarded death sentence to the accused but has convicted and sentenced the accused to imprisonment for life, fine and in default of payment of fine S.I. for the crime. Therefore, even if we follow the ratio laid down in the aforesaid case in The State versus Chhote Lal and confirm the findings of the Court below even then the Court has to order the detention of the accused in safe custody, otherwise it would not be safe for people in the society to grant freedom to such person to move freely who suffer from attacks of insanity after lucid intervals.

Next case relied upon by the learned counsel for the appellant is Shrikant Anand Rao Bhosale versus State of Maharashtra, 2003 (46) ACC28 . In that case, the Apex Court held that bringing the case within the purview of Section 84 the totality of circumstances have to be examined. Unsoundness of mind is a state of mind which has to be inferred from the circumstances. The Court held that if the accused has committed an offence out of extreme anger and not as a result of unsound mind, he in that case can not get benefit of exception contained in Section 84 IPC.

In that case the appellant was found guilty for the offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life, the appeal against conviction and sentence was dismissed by the High Court, which had culminated into appeal before the Apex Court.

It appears from the facts of that case that the appellant was under a delusion, under an attack of ailment and anger theory was not ruled out under schizophrenia attack. However, the accused appellant proved existence of circumstances as required under Section 105 of the Indian Evidence Act, 1872 to get benefit of Section 84 of the Act as he was incapable of knowing the nature of act because of unsound mind and in the peculiar facts and circumstances of that case. He was found to be entitled to the benefit of Section 84 IPC.

No other point has been argued by the learned counsel for the appellant.

Sri K.N.Bajpai, learned Additional Government Advocate has, from the record, pointed out that though the accused appellant had been treated for a long time but the Doctor has certified him to be cured about a year back and the circumstance to kill six persons in the police station who came to take shelter there as a result of violence and arson against persons belonging to Sikh community on account of killing of the then Prime Minister late Mrs.Indira Gandhi could not be due to schizophrenic attack and it may relate to the anger against the ''Sikhs'' in general.

Late Mrs. Indira Gandhi, the then Prime Minister of India was assassinated by her Security Guards Beant Singh and Satwant Singh on 31st October, 1984, as a fall out of which, crimes of arson, looting and killing against the ''Sikhs'' were committed. The Sikhs in the instant case had taken shelter in the police station to avoid the public wrath. Undoubtedly, the police was doing extensive patrolling duty to prevent any untoward incident and many people, who found themselves unsafe had shifted to safer places and some of them had also taken shelter in the police station Badaut, District Meerut.

In the case of Khuraijam Samoi Singh versus State of Mainpur, 1997 CRI.L.J. 1461 in paragraph 3 of the judgment the Court has considered question of plea of insanity read with Section 84 IPC and the burden of proof stating the principles thereof. Paragraph 3 of the judgment is as under:

" The rule of burden of proof in the context of the plea of insanity are (a) that the prosecution must prove beyond reasonable doubt that the offence was committed by the accused that the requisite " mens rea" and the burden continues from the beginning till the end of the trial (b) that it is a rebuttable presumption that the prisoner was not insane when he committed an offence in the sense set forth in Section 84 Indian Penal Code,( c ) that the accused may rebut the presumption of sanity at the relevant time bringing the case within Section 84, I.P.C. by producing oral, documentary, circumstantial and other materials and he may discharge the burden by establishing a reasonable probable case. The accused is not called upon to establish the element of Section 84, I.P.C. by producing evidence beyond reasonable doubt and (d) that even the accused fails to establish affirmatively or conclusively that he was of unsound mind and committed the act under the circumstances set out in Section 84, I.P.C. but raises a reasonable doubt in the mind of the Court as regards presence of essential ingredients of the offence, which of course includes, ''mens res'' the requisite criminal intention, 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."

It is apparent from the law placed before the Court that it lies upon the accused to prove that he was ''insane'' at the time of commission of the offence so as not to be liable to punishment as a sane person in view of Section 84 IPC.

In the case of State Versus Chhote Lal (supra) it has been observed that

" In all cases where previous insanity is set up, it is most material to consider the circumstances which have preceded, attended and followed the crime; 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 detection; whether, after his arrest, he offered false excuses and made false statements. All facts of this sort material, as bearing on the test, " would the prisoner have committed the act if there had been a policeman at his elbow."

In the case of Shrikant Anand Rao Bhosale (supra), the Court found that it was proved that there was history of pshychiatric illness in father at the age of 65 years and in 1989 his father ran away from the house. In paragraph 9 of the judgment the Court has considered what is paranoid schizophrenia, when it starts, what are its characteristics and has held in paragraphs 9 and 10 of the judgment that

" 9. what is paranoid schizopherenia, when it starts, what are its characteristics and dangers flowing from this ailment. Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early age. Ideas of reference occur, which gradually develops into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the insults. Delusions are at first in definite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. Disturbances of general sensation gives rise to hallucinations, which are attributed to the effects of hypnotism, electricity wireless telegraphy or atomic agencies. The gets very irrigated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandlose type. He entertains delusions of grandeur, power and wealth, and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversations is directed to the particular type of delusion from which he suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. ( Modi''s Medical Jurisprudence and Toxicology ( 22nd Edn.)

10.Further, according to Modi. the cause of schizophrenia is still not known but hereditary plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of patient, he is source of danger to himself and to others."

Since the learned counsel for the appellant has not disputed the factum of occurrence in the manner as has been proved by the prosecution of killing the Sikhs it would not be proper and relevant to give details of the injuries of the deceased and the injured Sikhs, who had taken shelter in the police station. The post mortem reports are on the record. We have perused the same and are of the opinion that the moot question which requires answer by this Court is as to whether the act committed by the appellant was in state of insanity or not. Therefore, no useful purpose would be served by saying something about the post mortem report on which counsel for the appellant has also not advanced any arguments.

Considering the argument of the counsel for the appellant and in the aforesaid backdrop which is said to have acted upon the mind of the accused to relapse to insanity as to whether he was having an attack of insanity after lucid intervals is now to be seen in the circumstances of the case and killing of the six and firing upon his fellow officers and staff immediately before and preceding the act of occurrence. As stated above, the appellant was perfectly normal before commission of the crime and when S.I. Sri Manvendra Mishra and other reached and tried to snatch the rifle from him he uttered that" eq>dks nsoh vkrh gS ojuk lcdks �dk0 QVk� ekj nwaxkA** to keep them at bay.

This clearly shows that he was not in a state of mind where he was incapable of knowing the nature of his action and was behaving in a manner as it nothing had happened or not aware about the consequences of his actions.

Applying the principles laid down in the cases cited by the counsel for the appellant, it is established that the appellant was cured of schizophrenic. He was performing his normal duties and having been completely cured as certified by the Doctor and was given firearms. He was on patrolling duty and had no attack for the last one year even after the murder of late Prime Minister of India, Mrs. Indira Gandhi on 31st October, 1984. The contention of the counsel for the appellant that the six persons belonging to the Sikh community who had been butchered by the accused inside the police station on 5th November,1984 as the accused suffered from a relapse a schizophrenic attack of insanity which was due to the fact that it was the Sikhs, who had killed Mrs. Indira Gandhi and they were being made target around the accused who had been treated for this disease is not borne out from the record. For the same reason it is not acceptable that the incident of 31.10.1984 affected his mind and he crossed the thin border between sanity and insanity when he committed the offence for the victims were alone and terror stricken inside the police station and had not done any overt act to excite or incite the accused. No police officers or his fellow men was at the elbow of the accused to stop him from his ghastly act.

In the instant case we find that the accused appellant was normal and he was fully conscious of his actions. The incident has occurred as a result of anger and not insanity as pleaded by the learned counsel for the appellant. It was a case of cold blooded, execution of the Sikhs,who had taken shelter in the police station. They were done away by the accused after finding opportunity when the police officers and staff were in the police station. He loaded firearms with live cartridges, empty of which had been recovered from the scene of occurrence. His action did not speak to that of an insane person. His utterance on being caught that do not show that Goddess was incarnated in his body and was of a sane person who was in command of all his faculty. This sentence can not be used in self defence by the appellant or the appellant to plead that he was insane, rather these very words were showing that he was aware and conscious about his actions and had resisted his arrest by firing upon his fellow police officials and threatening them as he was aware of the consequences of his arrest.

The aforesaid statement, in our mind, instead of being an indication of mental ailment was a conscious effort by the accused to masquerade the act of murder to be an act committed as mental aberasion and under the inspiration of some super natural inspiration. Therefore, his action immediately after the occurrence can not be said to be that of insane person.

The Trial Court has observed in paragraph 13 of the judgment and order dated 27.7.2007 that pursuant to the order dated 7.8.87 of the High Court the appellant was referred to Banaras for his mental treatment where the doctor reported that he was normal. Paragraph 13 is as under:

As argued by the learned AGA, we cannot loose sight of the fact that after assassination of late Prime Minister Mrs. Indira Gandhi by her Sikh body Guards, a large scale violence all over the country errupted. The Sikh people were targeted in many parts of the country by nonsikh community, their property was looted and they were killed at various places. This communal frenzy continued for some days. It was an ugly expression of communal hatred against the Sikhs community in general,who were being considered responsible for the treacherous murder of the then late Prime Minister of India, who was undoubtedly a tall and widely popular political personality adorned by millions.

What has been done by the appellant in that night is not a sequestered, isolated or unconnected incident having no nexus to the social and political atmosphere around. Instead it was a just another instance of Sikh killing, the like of which had happened and were happening at that time all over the country. It was not a schizophrenic act. In fact it was an act which had direct bearing with assassination of late Mrs. Indira Gandhi and its aftermath communal outrage. It shows that the appellant was not only conscious and aware about the happenings around him and in the Nation but that he was a highly politically and socially aware conscious person too. He with all his mental faculties alive reacted in the similar way as thousands of others, who had communal propensities reacted and behaved.

Thousands of those who had indulged in large scale arson, loot and acts of murder of Sikhs did not suffer from schizophrenia or any other mental ailment, which may be termed as legal insanity. Their insanity was only in the figurative sense of the term and denoted only a highly irrational behaviour and a parochial communal approach. It was just the same communal hatred and anger emanating from the despicable assassination that had gripped the appellant like many others of his type in the country, who wreaked vengeance on Sikhs and quenched their communal disdain by killing those who belonged to Sikh community.

The act of the appellant was neither lacking explanation nor motive. The timing of the incident is so conspicuously relevant that it gives a complete rebuff to the arguments of the defence which has attempted to find and suggest the explanation of these murders only in the event where the appellant should have suffered from some ailment like schizophrenia.

From the previous history and the conduct of the appellant during trial and subsequent to the trial, it is apparent that the accused appellant is a normal person. His acts were not of unsound mind as the Goddess never incarnated herself in him.

For all the reasons stated above, the appeal is hereby dismissed.

Let a copy of this order be certified to the C.J.M. concerned immediately for compliance.