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IN THE HONOURABLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

CRIMINAL APPEAL NO.

/2013

_______________________________________________________

Dahyabhai Chhanganbhai Thakker

(APPELLANT)

V.

STATE OF GUJARAT

(RESPONDENT)
_______________________________________________________

MEMORIAL FOR THE APPELLANT

HARISH N

Counsel No: 12IP60009


1

TABLE OF CONTENTS
[A]. LIST OF ABBREVIATIONS ................................................................................................. 3
[B]. INDEX OF AUTHORITIES ................................................................................................... 4
I.

CONSTITUTION OF INDIA .............................................................................................. 4

II. LIST OF STATUTES ........................................................................................................... 4


III. LIST OF CASES .................................................................................................................. 4
IV. LIST OF BOOKS................................................................................................................. 5
V. LIST OF JOURNAL ............................................................................................................ 6
VI. LIST OF INTERNET SOURCES........................................................................................ 6
[C]. STATEMENT OF JURISDICTION ....................................................................................... 7
[D]. STATEMENT OF FACTS ...................................................................................................... 8
[E]. ISSSUES RAISED .................................................................................................................. 9
I.

WHETHER THE APPELLANT SUFFERING FROM INSANITY AS PER SECTION 84 OF INDIAN PENAL

CODE?.............................................................................................................................................. 9
II.

WHETHER

THE EVIDENCE GIVEN BY PROSECUTION WITNESSES IN COURT SHOULD BE

ADMITTED OR NOT? .......................................................................................................................... 9

[F]. SUMMARY OF PLEADINGS .............................................................................................. 10


[G]. PLEADINGS ADVANCED ................................................................................................. 11
[H]. PRAYER FOR RELIEF ........................................................................................................ 20

[A]. LIST OF ABBREVIATIONS

S.No

ABBREVIATION

EXPANSION

1.

Paragraph/Paragraphs

2.

A.C

Law Reports : Appeal Cases

3.

AIR

All India Reporter

4.

All ER

All England Law Reports

5.

ANR

Another

6.

BC

British Columbia

7.

Bom

Bombay

8.

CA

Civil Appeal

9.

Cal

Calcutta

10.

Cri

Criminal

11.

CriLJ

Criminal Law Journal

12.

CrPC

Criminal Procedure Code

13.

E.R.

England Reports

14.

Fed

Federal

15.

Guj

Gujarat

16.

Honble

Honorable

15.

ILR

Indian Law Reports

16.

IPC

Indian Penal Code

17.

Ltd.

Limited

18.

M.P.L.J

Madhya Pradesh Law Journal

19.

MANU

Manupatra

20

ORS

Others

21.

Pat.

Patna

22.

QBD

Queens Bench Division

23.

SC

Supreme Court

24.

SCR

Supreme Court Reports

[B]. INDEX OF AUTHORITIES


I.

CONSTITUTION OF INDIA

II.

LIST OF STATUTES

The Code of Criminal Procedure,1973

The Indian Evidence Act,1872

The Indian Penal Code,1860

III.

LIST OF CASES

INDIAN CASES
S.NO
1.
S.No.
2.
3.
4.
5.
6.
7.
8.

Case Title

Citation

Bhagwan Singh v. State of Haryana

1976 Cr LJ 203 (SC)

Guru Singh v. State of Rajasthan

2001 Cr LJ 487 (SC)

Jai Lal v. Delhi Administration

AIR 1969 SC

K.Anbazaghan v. Superintendent of police


Kamla Singh v. State
Narain v. State
Paramjeet Singh v. State
Queen Empress v. Kader Nasyer Shah

AIR 2004 SC 524


AIR 1955 Pat. 209
1953 Cr LJ 1610
MANU/DE/0244/2013
(1896) ILR 23 Cal 604

Rambharose v. State of Madhya Pradesh

9.

1974 M.P.L.J. 406

Sat Paul v. Delhi Administration

10.

AIR 1976 SC 294

State of U.P. v. Ramesh Prasad Misra and anr

11.

AIR 1996 SC 2766

12.

Sukhram v. State of Madhya Pradesh

AIR 1989 SC 772

13.

T. N. Lakshmaiah v. State of Karnataka

(2002) 1 SCC 219

14.

Yusuf v. State of U.P.

1973 Cr. LJ 1220

FOREIGN CASES
S.No.

Case Title

Citation

1.

Queen v. McNaughten

8 Eng. Rep. 718 [1843]

2.

State v. Andrea Yates

171 S.w.3d 215

3.

The State v. Andrea Sneiderman

862 F. ed 1541 (Fed. Cir.


2012)

IV.
S.NO.
1.

LIST OF BOOKS
TITLE
K.

I.

VIBHUTE,

PSA

PILLAI'S

CRIMINAL

LAW

(10TH

ED.,

LEXIS

NEXIS

BUTTERWORTHS,2008).
2.

MODIS, MEDICAL JURISPRUDENCE

AND

TOXICOLOGY (23RD ED., LEXIS NEXIS

BUTTERWORTHS, 2006)
3.

RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE (30TH EDITION, WADHWA AND
COMPANY, 1896)

V.

1.

LIST OF JOURNAL

Insanity defense work group, American Psychiatric Association Statement on Insanity


Defense

VI.

LIST OF INTERNET SOURCES

1.

Hallucinations and Delusions How to respond Canadian Mental Health Association,


http://www.cmha.ca/hallucinationsand delusions-howtorespond.pdf.

2.

Malcom Mckenzie Park, The strange case of Andrea Yates and Dr Park Dietz, Dec
2008, available at http://papers.ssrn.com/sol3/papaers.cfm?abstract_id=365241.

[C]. STATEMENT OF JURISDICTION

The Appellant has approached the Honble Supreme Court of India under the Article 136 of the
Constitution of India. The Appellant most humbly and respectfully submits to the
jurisdiction of the Honorable Supreme Court of India.

[D]. STATEMENT OF FACTS


1.

Dahyabhai Chhaganbhai Thakker (hereinafter referred to as Appellant), son of


Chhanganbhai was married to Kalavati (Deceased).

2.

Appellant was employed in Monogram Mills in Ahmedabad. He was recalled by his father
to home since he was getting fits of insanity, which in the past 4 or 5 years before also he
was suffering from such disorder.

3.

Marital relationship between him and his wife was under strain because of the indifference
among them. Natverlal Atmaram the father of the deceased came to Bherai to take away
his daughter for the same reason 20 days before the incident took place. To which the
father of appellant told Natverlal that he will persuade his son not to discard his wife.

4.

On the day of incident parents of the appellant went to Ahmedabad to see a bridegroom for
his daughter and also to get medicines for their son who is suffering again from fits of
insanity.

5.

Both appellant and the deceased slept in the same room on that night. Around 3 to 4 a.m. in
the morning the deceased shouted that she is being killed on hearing which the neighbours
came in front of the room and asked to open the door.

6.

On opening the door the appellant came running out of the room like a made person waken
up by a bad dream shouting Why you killed my mother? Why you burnt my fathers
house? then started pouring mud on the people gathered there laughing like a insane person
and started laughing without any reason.

7.

Later he was put up for trial in sessions court on the charge of murder were the Additional
Sessions Judge did not accept the defence of insanity and convicted him under Sec. 302 of
Indian Penal Code (herein after, IPC) to undergo rigorous imprisonment for life.

8.

The case was then carried to the High Court of Gujarat in revision. The High Court upheld
the decision of sessions court. Against the order passed by the High Court, this appeal is
preferred by Special Leave Petition.

HENCE THE PRESENT MATTER RESTS BEFORE THIS HONORABLE COURT.

[E]. ISSSUES RAISED

I.

WHETHER THE
PENAL CODE?

II.

WHETHER

APPELLANT SUFFERING FROM INSANITY AS PER

SECTION 84

OF INDIAN

THE EVIDENCE GIVEN BY PROSECUTION WITNESSES IN COURT SHOULD BE

ADMITTED OR NOT?

[F]. SUMMARY OF PLEADINGS

I.

Whether the appellant suffering from insanity as per Section 84 of Indian Penal
Code?
The fact the appellant had past history of fits of insanity 4 or 5 years and the he also been
recalled to home because he was getting insane again, later his act of being behaving
insanely after the incident is enough to satisfy section 84 of IPC

II.

Whether the evidences given by the witnesses should be admitted or not?


The statement of witnesses given in court should be accepted, just because they have told
new fact which they have omitted to say in examination in chief will not make evidence
given by them inadmissible. Hence their evidence must be admitted by the court.

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[G]. PLEADINGS ADVANCED

I.

WHETHER THE APPELLANT WAS SUFFERING FROM INSANITY AS PER


SECTION 84 OF INDIAN PENAL CODE?

1.

Blacks Law Dictionary defines insanity as A legal concept that an accused is not
criminally responsible if, at the time of committing the act, the person was laboring under
such a defect of reason from disease of the mind as not to know the nature and quality of
the act done or if the act was known, to not have known that what was done was wrong1.

2.

Every man is presumed to be sane. This presumption does not apply to a man whose is
governed by Sec.84 of IPC.

3.

Under Section 84 of Indian Penal Code2 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,
(1) the nature of the act, or
(2) that he is doing what is either wrongly or contrary to law.
This section is based on the answers given by the House of Lords in famous McNaughtens
case3

AT THE TIME OF DOING THE ACT


4.

The crucial time for deciding whether the benefit of this section should be given or not is
the material time when the offence takes place. If at that moment a man is found to be
laboring under such a defect of reason as not to know the nature of the act he was doing or
that, even if he knew it, he did not know it was either wrong or contrary to law then this
section must be applied.

Blacks Law Dictionary, 826 (7th ed. 1998)


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.
3
(1843) 10 Cl. & F. 200 : 8 E.R. 718
2

11

5.

The relevant circumstances, like behaviour of the accused before the commission of the
offence and his behaviour after the commission of offence should be taken into
consideration4.

6.

Experience has shown that different individuals react differently to same or similar
situations. Some may escape from the scene of occurrence, others may not while some may
even walk to the police station to surrender and report about what they have done. Such
post event conduct may be relevant to determine the culpability of the offender in the light
of other evidence on record.

7.

Here in the present case appellant was laboring under such unsoundness of mind at the
time when the incident took place.

UNSOUNDNESS OF MIND
8.

It is only unsoundness of mind which naturally impairs the congnitive faculties of the
mind that can form a ground of exemption from criminal responsibility5.

9.

The nature and extent of the unsoundness of mind required being such as would make the
offender incapable of knowing the nature of the act, or that he is doing what is wrong or
contrary to law6.

10.

The fact that the appellant came out of the room shouting, why you killed my mother?
Why you burnt down my fathers house? Shows that he was suffering from hallucination a
type of mental illness.

NATURE OF THE ACT, OR WHAT IS WRONG OR CONTRARY TO LAW


11.

By nature of the act is meant the physical nature of the act or the normal effects of the act.
A man is properly said to be ignorant of the nature of his act, when he is ignorant of the
properties and operation of the external agencies which he brings into play7.

Narain v. State, 1953 Cr LJ 1610


Queen Empress v. Kader Nasyer Shah (1896) ILR 23 Cal 604
6
Kanbi Kurji Duba v. State AIR 1960 Guj 1
7
Rambharose v. State of Madhya Pradesh 1974 M.P.L.J. 406
5

12

12.

The statement of accused may suggest that he was capable of knowing the nature of his act
that does not suggest that he was capable of knowing that what he was doing was either
wrong or contrary to law8.

13.

In this case when we looked for a mens rea for the offence, there is none. There is also no
evidence of any hostility in the family of the appellant. It is difficult to be convinced that
the appellant for no reason would so brutally put to death his own wife.

14.

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 discharged9.

15.

The nature of the incident as it took place in this case shows that the appellant obviously
not in his right mind know what he was doing since he was under hallucination. He did not
realize his nature of act or what he was doing is whether right or wrong. Since he was in
state of insanity.

TEST OF LEGAL INSANITY


16.

The test exemption from the conviction and punishment for the crime on the ground of
insanity is the legal test laid down in this section and not the medical test of insanity.
1. A person is incapable of knowing the nature of the act i.e. the physical act he is doing.
2. A person is incapable of knowing that he is doing wrong.
3. A person is incapable of knowing that he is doing what is contrary to law.

17.

Legal insanity as distinguished from medical insanity envisaged and covered by Section 84
IPC is narrower and is applicable if the person accused was incapable of knowing the
nature of the act or knowing that what he was doing was either wrong or contrary to law.
The proper question, which is to be asked and answered, whenever a plea under Section 84

8
9

Kamla Singh v. State AIR 1955 Pat. 209


T. N. Lakshmaiah v. State of Karnataka (2002) 1 SCC 219
13

is raised, is whether the appellant/accused at the time of doing of the act, was incapable of
knowing the nature of the act or that what he was doing was wrong or contrary to law10.

18.

In other words, to establish insanity under Section 84 IPC, it has to be established that the
accused was laboring under such disability, i.e. unsoundness of mind, as not to know the
nature and quality of the act he was committing or the act was wrong/contrary to law.
Further, the crucial time for ascertaining insanity is the time when crime was committed
i.e. the time when the act or offence was in fact done. Unsoundness of mind after or before
commission of the offence is not relevant, though may throw light on whether the accused
was unsound when the offence was committed.

19.

Failure to prove mens rea or absence of mens rea when mandated and requirement of an
offence, will result in acquittal but this should be distinguished from "insanity" as defined
and granted immunity under Section 84 IPC. These are two separate lines of defences and
require distinct considerations. Normally onus to prove mens rea is on the prosecution and
failure to prove will cause acquittal on merits because no offence is proved to be
committed. Question of "insanity" relates to disease or malfunctioning of mind and the
onus is on the accused.

20.

Even if the accused is unable to establish conclusively that he was insane at the time he
committed the offence, but if the evidence produced is sufficient to raise reasonable doubt
in the mind of a judge as regards one or other of necessary ingredients of the offence11.

21.

The facts of the case suggests that the appellant was incapable of knowing the nature of his
act, that he is doing wrong, that he is doing which is contrary to law. Hence the appellant
passes the test of insanity.

10
11

Paramjeet Singh v. State MANU/DE/0244/2013


Jai Lal v. Delhi Administration AIR 1969 SC
14

MENTAL ILL HEALTH OF APPELLANT AND ITS MEDICO LEGAL


ASPECTS
22.

Insanity implies a degree of mental disturbance so menacing and so disabling that the
person is considered from the legal point of view to be immune from certain
responsibilities12.
HALLUCINATION

23.

A false sensory perception of what is not there (without external stimuli). The
hallucinations of hearing and sight are the most common.A person experiencing
hallucinations may be very frightened by them and needs help in establishing a calm
environment13.
IMPULSE

24.

This is a sudden and irresistible force compelling a person to the conscious performance
of some action without motive or fore-thought. A mentally ill person has no such balance
of mind to use the reasoning and commits an act as soon as an idea occurs to him.
ONSET

25.

The onset of mental ill-health is usually gradual, but may be sudden in some cases as
happened in the present case. Conduct and behaviour changes he is not the same man that
he used to be. He is gloomy, morose, listless, and apathetic and does not care for the social
conventions. At times, he is very excitable and irritable even by trifling worries, which will
not be otherwise. This followed by alteration in his emotions. His affections for his wife
and near relatives are changed to dislike and hatred.

26.

So far his intellect may not be impaired and capable of looking after himself. Later his
memory fails him and power of self control is lost. The power of reasoning is interfered
with, and the judgment becomes weak and faulty. At this stage, the errors of perception of

12

See Insanity defense work group, American Psychiatric Association Statement on Insanity Defense , 130
U.PA.L.REV. 521 (2005)
13
See Hallucinations and Delusions How to respond Canadian Mental Health Association,
http://www.cmha.ca/hallucinationsand delusions-howtorespond.pdf.
15

special senses are evident in the form of hallucinations and delusions, which may lead the
patient to perpetrate some crime or outrage14.
27.

If we compare this onset pattern with our case in hand we can see how exactly it fits. First
Appellant shows signs of onset of mental problems because of which he was recalled to his
home. He did not have a smooth relationship with his wife which made him depressed and
lead to mental stress. This mental stress has escalated after his return to home.

Some high profile murder cases


28.

In famous Andrea Yates case in United States a mentally disturbed mother was convicted
of murdering her five children in which defendant found not guilty by reason of insanity15.

29.

Yet in another case The State v. Andrea Sneiderman16 the person accused of murdering his
co-worker husband in order to marry her told that he was acting on by the command given
by the angel, court held he was mentally ill and should be put him in mental care.

30.

The fact that the appellant came out of the room shouting, Why you killed my mother?
Why you burnt down my Fathers house? And started throwing mud at everyone while
laughing wildly without any reason clearly shows that the appellant was hallucinating as a
result of which with this irresistible impulse he fatally injured his wife which he did not
realize the nature of his act or its consequences.

Hence it is humbly submitted that the appellant was suffering from insanity at the time of
incident so as to satisfy section 84 of Indian Penal Code.

14

MODIS., Medical Jurisprudence and Toxicology, 23rd Ed. 2006 p.1058.


Malcom Mckenzie Park, The strange case of Andrea Yates and Dr Park Dietz, Dec 2008, available at
http://papers.ssrn.com/sol3/papaers.cfm?abstract_id=365241.
16
862 F. ed 1541 (Fed. Cir. 2012)
15

16

II.

WHETHER EVIDENCE GIVEN BY WITNESSES IS ADMISSIBLE OR NOT?

31.

A criminal case is built upon the edifice of evidence (whether it is direct evidence or
circumstantial) that is admissible in law. It is misconceived notion that merely because
witness is declared hostile his entire evidence should be excluded of consideration.

32.

A close scrutiny of sec 15417 will bring following points into picture
I.

The provision only talks about permitting such questions as may be asked in the
cross examination.

II.

The law nowhere mentions the need to declare the witness as hostile before the
provision can be evoked.

III.

The judicial consideration is only to be invoked when the court feels that the
attitude disclosed by the witness is destructive of his duty to speak the truth.

All that law seeks to elicit hidden facts for the sole purpose of determining truth.
CRIMINAL PROCEDURE CODE
33.

As per section 16118 of CrPc it empowers a police officer to record the statement of a
person, who is acquainted with the facts and circumstances of the case being investigated
by him. This however is not admissible in a court of law. The rationale behind this is that
the police might coerce witnesses into making statements and such should not be adducted
as evidence. Hence the witness is required to appear before the court at the time of trial.

34.

If the witness changes his statement or deny having made such statement the prosecution
usually prays to the court that such witness be declared hostile thereby creditworthiness of
witness is impeached.

17

(1)The court may, in its discretion, permit the person who calls a witness to put any question to him which might
be put in cross-examination by the adverse party.
(2) nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the
evidence of such witness.
18
(3)The police officer may reduce into writing any statement made to him in the course of an examination under
this section: and if he does so, he shall make a separate and true record of the statement of each person whose
statement he records.
17

EVIDENTIAL VALUE OF STATEMENTS GIVEN BY A HOSTILE WITNESS


35.

The Supreme Court in its various judgments has held that declaration of a witness to be
hostile does not ipso facto reject the evidence.

36.

The decision made by apex court in State of U.P. v. Ramesh Prasad Misra and anr19 that
it is equally settled law that the evidence of a hostile witness would not be totally rejected
if spoken in favour of the prosecution or the accused but it can be subjected to closed
scrutiny and that portion of the evidence which is consistent with the case of the
prosecution or defence may be accepted.

37.

In K.Anbazaghan v. Superintendent of police20 it was said that if the judge finds that in the
process the credit of the witness has not been completely shaken, he may after reading and
considering the evidence of the witness as a whole and act upon it.

38.

In consistent or contradictory statements of the witness are not the only ground for
permitting examination under section 15421.The testimony of a witness should not be
discarded and not taken into consideration simply because he turned hostile.

39.

The fact that the prosecutor was permitted to cross-examine his own witness without
declaring him hostile, would be no reason for discarding his testimony altogether. Even if a
witness makes changes in his statement and prosecution permitted to cross examine him
with the leave of the court, his evidence cannot be treated as altogether washed off22.

40.

The fact that such cross-examination was permitted does not imply that the witness who
was cross-examined, for all purposes, an un-trustworthy witness, and no part of his
statement can be regarded as representing the truth23.

19

AIR 1996 SC 2766


AIR 2004 SC 524
21
Sat Paul v. Delhi Administration AIR 1976 SC 294
22
Bhagwan Singh v. State of Haryana 1976 Cr LJ 203 (SC)
23
Guru Singh v. State of Rajasthan 2001 Cr LJ 487 (SC)
20

18

41.

Here mere fact that the evidence of a witness tends to be favourable to the accused as
elicited by the defence in cross-examination is not a valid ground to declare such a witness
as hostile24.

42.

In the case of Sukhram v. State of Madhya Pradesh25, a bench of two Judges of the Hon'ble
Supreme Court further held in such a case, the accused would be entitled to benefit of
doubt.

43.

Their Lordships have also held that it is a misconceived notion that merely because a
witness is declared hostile his entire evidence should be excluded or rendered unworthy of
consideration. The evidence remains admissible in the trial and there is no legal bar to base
the conviction upon the testimony of such witness.

44.

There must be some material to show that the witness is not speaking the truth or has
exhibited an element of hostility to the party for whom he is deposing before a witness can
be declared hostile and the party examining the witness is allowing to cross examine him.
Merely because the witness speaks about the truth which may not suit the party on whose
behalf he deposing the same and favourable to the other side, the discretion to allow the
party concerned to cross-examine its own witness cannot be exercised.

45.

In the present just because the witnesses have failed to mention a fact prior cannot be a
reason to not to accept their evidence.

Hence it is humbly submitted that the evidence given by the witnesses should be accepted.

24
25

Yusuf v. State of U.P. 1973 Cr. LJ 1220


AIR 1989 SC 772
19

[H]. PRAYER FOR RELIEF

Wherefore in the light of facts stated, questions presented, authorities cited and pleadings
advanced, it is most humbly prayed before the Honorable Court that it may be pleased to:

i. Allow the appeal


ii. Set aside the conviction passed by lower court.

And pass any orders that it deems fit in the interests of justice all of which is respectfully
submitted.

Date:

s/d 1. ....................................

Place: New Delhi, India

HARISH N (12IP60009)
(Counsel for the Appellant)

20