IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 814 OF 2023
DISTRICT :AKOLA

DEVIDAS LOKA RATHOD ....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA ...RESPONDENT(S)

MEMORIAL FOR PETIOTIONER
SUMITTED TO : SUMITTED BY:
YASHVEER GUPTA HARMANJEET SINGH

(MOOT COURT INCHARGE) ROLL NO: 20034

th
BALLB(7 sem)
SESSION : 2023-2024

INDEX OF AUTHORITIES

CASES :

➢ Shrikant Anandrao Bhosale Vs State of Maharashra,….

➢ Ratan Lal Vs State of Madhya Pradesh (1970) 3 SCC 533,…
➢ Baswantrao Bajirao vs Emperor on 1 April, 1947., ....
➢ Ashok Singh vs State Of M.P. on 10 December, 2021. ...
➢ Kamla Singh vs The State on 23 December, 1954. ...
➢ Ajaya Mahakud vs State on 2 November, 1992. ...
➢ Ramhitram Ramadhar Dube vs State Of Madhya Pradesh on 3 June,
1955. ...

➢ Benny Joseph, C.No.4006 vs State Of Kerala on 13 June, 2023.,,

 ➢ Dahyabhai Chhaganbhai Thakker vs. State of Gujarat1964 (7)
SCR 361,…
➢ Elaverson vs. State 2011 (7) SCC 110,…
➢ Deepak Kumar vs. Ravi Virmani and another, 2002 2002 (2) SCC
737,…
➢ Bapu vs. State of Rajasthan, (2007) 8 SCC 66,…
➢ Dahyabhai Chhaganbhai Thakkar Vs: State of Gujrat,(1964) 7
SCR 361,..
➢ Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 495,…
➢ State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602, …
➢ In D.G. Thakker v. State of Gujarat,…
➢ In D.G. Thakker v. State of Gujarat,…
➢ Rama and others vs. State of Rajasthan, (2002) 4 SCC 571,…

List of Statutes :

❖ Indian Penal Code,1860

❖ The Indian Evidence Act, 1872
❖ The Code of Criminal Procedure, 1973
Books Reffered:

❖ RATANLAL & DHIRAJ LAL , THE INDIAN PENAL CODE,1860

❖ BATUK LAL, THE INDIAN EVIDENCE ACT 1872
❖ Dr. J.N. Pandey, The constitution of India
❖ S.N. MISRA, THE CODE OF CRIMINAL PROCEDURE,1973

WEBSITES REFEREED :

❖ https://indiankanoon.org/
❖ https;www.advocatekhoj.com/
❖ https://lawfinder.com/
❖ https:Wikipedia.com/

STATEMENT OF JURISDICTION
The Appellant humbly submits this memorandum for a petition filed before the Hon’ble
HIGH COURT OF JUDICATURE AT BOMBAY. The Appellant has approached the
Hon ’ble High Court under the Section 374 clause (2) of CRPC which states that “
Any person convicted on a trial held by a Sessions Judge or an Additional Session Judge
or on a trial held by any other court in which a sentence of imprisonment of more than
seven years has been passed , may appeal to the High Court “ appealing that in absence
of any mens rea, conviction under Section 302 I.P.C. was unsustainable.

STATEMENT OF FACTS

1. In the morning of 26.9.2006, the appellant devidas suddenly picked up a sickle from the
shop floor of the iron smith and attempted to assault Gulab Pawar, but which injured
Santosh Jadhav on the jaw and cheek and gave a further blow on his shoulder. The same
 day, he later assaulted Ulhas Rathor on his back and neck and rained blows on the back
and stomach of the deceased Harish Chandra Chauhan, when the latter tried to intervene.
Devidas then tried to flee, throwing the sickle enroute, when he was apprehended by the
villagers and handed over to the police.

2. Police Sub-Inspector Mohan Singh in his chief examination stated that appellant was
caught immediately after he made the assault on 26.9.2006 and bought to the police
station. The FIR was registered on the same day. But the appellant was taken in custody
only on 28.9.2006 because he was not keeping well and had been arrested in the hospital.

3. The information of his arrest was not given to his sister or mother, but only to his friend
Nagorao , who has not been examined. Appellant was not subjected to any medical
examination by investigation officer when he came to know about previous history of
insanity of Devidas and neither any evidence regarding insanity of Devidas was produced
by the prosecution.

4. Devidas was taken into custody on 28.9.2006. Chargesheet was submitted on 29.12.2006
and commitment done on 16.2.2007.Devidas was very poor guy and necessitated legal
assistance for his defence by the District Legal Service Authority.

5. The records of Jail Authority reflect several several medical visits in prison, even weekly
, 12 in number, between the period from 9.1.2007 to 7.4.2007, administering of
antipsychotic drugs such as tablet Haloperidol and tablet Olanzapine and tablet Diazepam
to Devidas with the impression recorded by the Doctor that the patient is psychotic and
needs continuation of treatment.

6. The trial Court directed him to be sent to the Mental Hospital and called for a fresh
report. On 11.4.2008, fresh report was called for and appellant was prescribed Trincalm
Forte tablet/ Trincalm Plus tablet amongst other medicines.

7. The Appellant showed suicidal tendency , aggressive behavior, disturb sleep , poor
communication and occasional erratic behaviour. He was treated with with a various
antipsychotic drugs since January 2008, till today.At present he is under control with
antipsychotic drugs and is still maintained on drugs .

ISSUE RAISED:

➢ Whether the defence of ‘unsound mind’can be taken under section 84 of

The Indian Penal Code or not?
➢ Does both the elements of crime ; Mensrea and Actusreus was present
in this case?

➢ In absence of Mensrea does appleant convicted Under Section 302 was

justified?

Summary of Arguments

➢ Whether the defence of ‘unsound mind’can be taken under section 84 of The Indian
Penal Code or not?
Yes the defence under section 84 can be taken before the Hon’ ble court as devidas is
suffering from mental illness since unknown duration. He is being treated and examined by
several psychiatrists . Devidas had to be tied up at times and was unable to take care of
himself. He also shows suicidal tendency , aggressive behaviour , disturb sleep and
aggressive behaviour.

➢ Does both the elements of crime ; Mensrea and Actusreus was present in this case?
In this case the element of Mensrea is not present. As to make person liable for the
offence both elements , i.e. Mensrea and Actusreus should be present. The accused is of
unsound mind as he is suffering from psychosis and is still maintained on drugs.
Therefore, defence of section 84 is pleaded before the Hon’ ble high court

➢ In absence of Mensrea does appellant convicted Under Section 302 was justified?
As mentioned above, appellant by reason of unsoundness of mind is incapable of
knowing the nature of the act, or that he is doing what is either wrong to contrary to
the law. The appellant is very poor person and he could not be expected to keep his
medical records and precriptions meticulously. The conviction was therefore,
unjustified and the appellant was entitled to acquittal.
Advanced Arguments

➢ Whether the defence of ‘unsound mind’can be taken under section 84 of The Indian
Penal Code or not?

➢ Section 84 of The Indian Penal Code states thatA number of tests have been given from
time to timefor this purpose and the kind and degree of insanity available as a defence
against a crime. But the mostnotable among all is the R. v. M’Naghten’s case ;
In this case the law relating to insanity is to be found inthe form of replies given by the 15
judges of the House of Lords to the five questions put to them with aview to clarifying the
law on this subject.

The two questions that arose were:

1. What are the proper questions to be submitted to the jury where a person, alleged to
be afflicted with insane delusions respecting one or more particular subject or persons, is
charged with the commission of a crime and insanity is set up as a defence.

2. In what terms ought the questions to be left to the jury as to the prisoner’s state of mind
at the time when the act was committed?

➢ The answers to these questions were: Every man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his crimes, until the contrary be proved to
their satisfaction; and that to establish a defence on the ground of insanity, it must be
clearly proved that, at the time of committing the act, the party accused was labouring
under such a defect of reason, from the disease of the mind, as not to know the nature and
the quality of the act he was doing; or if he did know it, that he did not know he was
doing what was wrong. Section 84 of The Indian Penal Code embodies two different
mental conditions to claim exemption fromcriminal liability, namely:

(i) The accused was incapable of knowing the nature of the act, owing to the unsoundness
of the mind, or

(ii) The accused was precluded by reason of unsoundness of mind from understanding that
what he was doing was either wrong or was contrary to law.

In the case of R. v. McNaughten:

the accused, Daniel Mc Naughten was charged for the murder of Edward Drummond
(Secretary to the Prime Minister, Sir Robert Peel), by shooting him in his back, as he was
walking. The accused was suffering from an insane delusion that Sir Robert Peel had
injured him. He mistook Drummond for Sir Robert and so shot and killed him.
The accused pleaded not guilty on the ground of insanity, his obsession with certain
morbid(horrible) delusions.The jury returned a verdict of not guilty on the ground of
insanity

In R. v. Bryne :
the accused was charged for strangling a girl and mutilating her dead
body. It was found that the accused was a sexual psychopath and that he could not control
 himself at the material time. The trial judge directed the jury to the effect that if he killed
the girl under an abnormal sexual impulse or urge which was so strong that he found it
difficult or impossible toresist, but otherwise he was normal, the plea of diminished
responsibility would fail. He was convicted of murder. The Court of Appeal substituted a
verdict of mans laughter. Similarly, in the given case, the accused, Mr. Ratan Gond was
incapable of knowing the nature of the act, owing to the unsoundness of the mind. Also,
he
by reason of unsoundness of mind was unable to understand that what he was doing was
either wrong or was contrary to law.

In the case of Ashiruddin v. The King:

, the Honourable Calcutta High Court allowed the defence of insanity under section 84 of The
Indian Penal Code on the ground that the accused had sacrificed his son of five years while
acting under the delusion of a dream, believing it to be right. The accused had dreamt that he
was commanded by someone in paradise to sacrifice his son of five years. The next morning
the accused took his son to a mosque and killed him by thrusting a knife at his throat. He then
went straight to his uncle but, finding a chaukidar nearby, took his uncle to a tank some
distance away and slowly related the story. On these facts, it was held by a bench of the
Honourable Calcutta High Court that this was a case of insanity under section 84 of The
Indian Penal Code was made out.It was held in this case that to enable an accused to obtain
the benefit of section 84 of TheIndian Penal Code he should establish any one of the
following three elements:
(i)That the nature of the act was not known to the accused, or
(ii)That the act was not known by him to be contrary to law, or
(iii)That the act was not known by him to be wrong.
On the above facts , the Bench held that the third element was established by the accused,
namely, that the accused did not know that the act was contrary to law.

Section 84 of the Indian Penal Code sets out the legal responsibility test as distinguished from
the medical test. It can be observed that the absence of will arises not only from the absence
of understanding maturity but also from a morbid state of mind. This morbid mind condition,
which provides an exemption from criminal responsibility, differs from the medical and legal
point of view. According to the medical point of view, it is probably correct to say that every
person, when committing a criminal act, is insane and therefore needs an exemption from
criminal responsibility; while it is a legal point of view, a person must be held to be the same
as long as he is able to distinguish between right and wrong; as long as he knows that the act
carried out is contrary to the law.

It has been ruled by the Supreme Court that “mentally ill” people and psychopaths are
unable to seek immunity from a criminal case, as it is their responsibility to demonstrate
insanity at the time the crime was committed.

So in practice, not every person who is mentally ill is exempt from criminal liability. There
has to be a distinction between legal insanity and medical insanity. “Arijit Pasayat and the
Bench of Justices, DK Jain, stated while upholding the life conviction of a man who cut off
his wife’s head. The mere abnormality of mind, partial delusion, irresistible impulse or
compulsive behavior of a psychopath does not provide protection from criminal prosecution
as provided by the apex court held Section 84 of the Indian Penal Code (IPC). The Bench
stated that Section 84 of the IPC, which provides immunity from criminal prosecution to
persons of unsound mind, would not be available to an accused, as the burden of proving
insanity would lie with them, as provided in Section 105 of the Indian Evidence.

Therefore, Before the Hon’ ble high court the defence of under section 84 of INDIAN
PENAL CODE should be given to the accused as he is suffering from psychosis and
administered antipsychotic drugs.
 ➢ Does both the elements of crime ; Mensrea and Actusreus was present in this
case?
The essential elements necessary to constitute a crime are:

i. A human being guilty intention (Mens rea)

ii. Act or Omission (Actus reus)
iii. Injury

The first element requires that the wrongful act must be committed by a human being. In
ancient times, the idea of retribution was prevailing, so the punishments were inflicted on
animals also for the injury caused by them. But now, if an animal causes an injury we hold
not the animal liable but its owner liable for such injury.

The second important essential element of a crime is mens rea or evil intent or guilty mind.

The human being forms a guilty intention to commit the crime and with that guilty intention
he does that act which is the third element of crime, i.e. actus reus. As the fundamental
principle of criminal liability is that there must be a wrongful act (actus reus), combined with
a wrongful intention (mens rea). A person cannot be punished only for his act in the absence
of guilty intention on his part.

The fourth element of crime is injury. When by the intended act of a human being injury is
caused then the crime is complete. Injury is caused to another person or to the whole society.

According to Sec. 44 of the I.P.C. the word "injury" denotes any harm whatever
illegally caused to any person, in body, mind, reputation or property. Here in this chapter
we will discuss in detail the the mens rea and actus reus, which are the two most important
essentials crime. II. Meaning of Mens Rea: A fundamental principle of Criminal Law is that a
crime consists of both a mental and a physical element. Mens rea, i.e. a person’s awareness of
the fact that his or her conduct is criminal, is the mental element, and actus reus, i.e. the act
itself, is the physical element. Mens rea is a technical term, generally taken to mean some
blameworthy mental condition, the absence of which on any particular occasion negatives the
condition of crime. It is one of the essential ingredients of criminal liability.
A criminal offence is committed only when an act, which is forbidden by law, is done
voluntarily. It is the main characteristics of our legal system that the individual’s liability to
punishment for crimes depends, among other things, on certain mental conditions. The
absence of these conditions, where they are required, negatives the liability.
Therefore an act in order to be a crime must be committed with a guilty mind. This
principle is based on the maxim ‘Actus non facit reum nisi mens sit rea’, it means the act
alone does not make a man guilty unless his intentions were so. No person can be held liable
for his act unless it is proved that he had a guilty mind. It is the combination of act and intent
which makes a crime. In the case of Sweat v. Parsley, Lord Diplock said, “An act does not
make a man guilty of a crime unless his mind be also guilty”. Salmond said that the
responsibility in crimes must depend on the doing of a ‘willed’ or ‘voluntary’ act and a
particular intent behind that act. For any criminal liability there must be a ‘voluntary act’.
This proposition is derived from the maxim ‘actus me invito factus non est mens actus’ which
means ‘an act done by me against my will is not my act’. This maxim supports the doctrine of
mens rea for no person can be held liable for an act done under fear or compulsion.

For ex.- ‘A’ holds ‘B’ and compels him at gun point to open the lock of C’s house. Here B’s
act is not a willed or intentional act. Origin and Development of Mens Rea: Notion of mens
rea in early primitive societies was non-existent and liability was absolute and offender was
responsible whether he acted innocently or negligently. In the earlier times the trials were
held on fundamental presumption that a man must almost in every case be deemed to have
intended to do what he had done. In those days the distinction between crime and tort was not
clearly drawn and punishment in those days mainly consisted of money compensation to the
person wronged.

Therefore, the mental attitude of a person was an irrelevant consideration. But later on bodily
punishment came as a substitute of the payment of damages. It was then that the importance
of mens rea at the time of commission of crime was realized. With the passage of time the
requirement of mens rea as an essential of a crime has firmly taken its root. Before the 13th
century, the doctrine of mens rea was almost non-existent. Even then it was not completely
disregarded and was kept in view in awarding the punishment. But by the end of 17th century
it was universally settled law that mens rea is an essential ingredient of crime. III.
Application of Principle of Mens Rea to Statutory Offences: The principle of mens rea has
been applied to all common law offences in England without any exception. But the answer
to the question that whether it is applicable to statutory offences was uncertain upto 1947.
The question whether the common law requirement of mens rea must be imported into every
crime defined in the statute even where it is not expressly mentioned as an essential element
has been discussed in a number of cases.
R. v. Prince and Queesn v. Tolson:
are the two leading cases on this point. In the case of
R. v. Prince, Prince Henry was tried for having unlawfully taken away an unmarried girl,
below the age of 16 years, out of the lawful custody and against the will of her father, under
the belief that she was 18 years old. Jury found that before the accused took her away, the girl
had told him that she has attained the age of 18 years. It was held that the accused’s belief
about the age of girl was no defence. It was argued that the statute did not insist on this
knowledge of the accused , the doctrine of mens rea, should, nevertheless be applied and
conviction be set aside in the absence of criminal intention. 16 Judges tried the case and all
but one unanimously held Prince liable. By a majority of fifteen to one the court held that: “A
mistaken belief, even though based on reasonable grounds, that the girl was over sixteen
years of age is no defence to a charge of kidnapping-a statutory offence of taking a girl under
sixteen years of age out of possession and against the will of her parents or guardian”. A
distinction was drawn between the acts that were in themselves innocent but made punishable
by statute (malum prohibitum) and acts that were intrinsically wrong and immoral (malum in
se). In the former, a belief, a reasonable belief in the existence of the facts, if true, would take
the case out of the mischief of the statute and would be a good defence; but in the letter case
such a belief was immaterial unless, of course, the law made it otherwise. In these offences
which are malus in se, mens rea is presumed and it need not be proved specifically. Brett J.
who gave a dissenting opinion, was of the view that in order to constitute an offence mens rea
is essential and it was necessary to the prosecution to establish mens rea on the part of the
accused. Three theories were propounded in this case: (i) Brett J. propounds that in order to
constitute a crime, mens rea is essential. (ii) Denman J. held that the liability was based on
the ground that the accused knowingly committed a civil wrong by taking a minor girl from
the lawful custody of her parents. (iii) Bram well J. held that it was sufficient to establish that
Prince had intended to commit an immoral act. The real reason, as has been stated above, for
the conviction was that the accused had committed an act which was forbidden by the statute.
In the case of Queen v. Tolson:,
the Court held that "a
reasonable belief in good faith in the death of the first spouse negatives mens rea, and is a
good defence to a charge of bigamy.” The marriage of the accused (Mrs. Tolson) to Mr.
Tolson took place in 1880 and Mr. Tolson deserted her on December 13, 1881. She and her
father made inquiries about him and ultimately came to know that he had been lost in a vessel
bound for America, which went down with all hands on board. On January 10, 1887, the
accused, supposing her to be a widow, went through a ceremony of marriage with another
man. The circumstances were well known to the second husband and the ceremony was in no
way concealed. In December 1887, Mr. Tolson suddenly reappeared. Upon these facts Mrs.
Tolson was charged of Bigamy under Section 57 the Offences against the Persons Act, 1861.
In the Trial Court she (the accused) was convicted, and then she filed the appeal before the
higher court. The question before the Court of Appeal was whether Mrs. Tolson had guilty
intention in committing the offence of bigamy. The Court by majority set aside the conviction
on the ground that a bona fide belief about the death of first husband at the time of second
marriage is a good defence. The Court also laid down that the doctrine of mens rea would be
applied in statutory offences also unless the same is ruled out by the statute. In this case the
accused acted in good faith upon reasonable and probable cause of belief without rashness or
negligence, therefore, she is not to be considered guilty as she was found to be mistaken. In
the case of R. v. Wheat & Stock, Wheat a man of little education, instructed his solicitors to
obtain a divorce from his first wife, and received a telegram from them that he would shortly
receive the necessary papers for signatures. He there upon married Stocks, and at his trial for
bigamy, the Jury found that he believed on reasonable ground, and in good faith, that he had
been divorced from his first wife. He was, nevertheless, convicted and his conviction was
affirmed on appeal. The Court of Criminal Appeal held that there was not sufficient evidence
that Wheat has reasonable ground for believing that he had been divorced, but the Judgment
proceeds to declare in general terms that a reasonable belief that his first marriage has been
dissolved is no defence to the charge of bigamy. It is submitted that the two cases are
perfectly reconcilable. In Tolson’s case the accused's mistake was one of fact and in Wheat's
case the mistake was the mistake of law, and therefore, he was guilty of an offence. Mrs.
Tolson did not intend to do the act forbidden by the statute, i.e., to marry another during the
former husband's life where as Wheat did. In the case of Brend v. Wood [(1946) 62 TLR 462]
it was finally held that the principle of mens rea is applicable not only to common law
offences but to all the statutory offences also. It was held by Lord Goddard C.J.: “The general
rule applicable to criminal cases is actus non facit reum nisi mens sit rea. It is of utmost
importance for the protection of liberty of the subject that a Court should always bear in
mind, that unless a statute, either expressly or by necessary implications, rules out mens rea
as a constituent part of the crime, the Court should not find a man guilty of an offence
against the criminal law unless he has guilty mind.” . Mens Rea and Indian Penal Code:
J.D. Mayne, Ratan Lal Dheeraj Lal and various other authors have taken the view that the
common law docrine of mens rea has no general application in India. Mayne observed
“Under the Penal Code such a doctrine of mens rea is wholly out of place. Every offence is
defined and the definition states not only what the accused must have done, but the state of
his mind with regard to the act when he was doing it.”

The word mens rea has nowhere been used in the IPC but it has been applied in the following
two ways: i. While defining offences, words used indicate actual criminal intent required for
the offence. The expressions fraudulently, dishonestly, voluntarily, knowingly and
intentionally, etc. used in the definitions indicate the criminal intent. No such words have,
however, been used in case of offences which can not be committed by innocent persons. In
those offences criminal intent is presumed. Such offences are Waging war against
Government (Sec. 121), Sedition (Sec. 124-A) and Counterfeiting of Coins (Sec. 232),
etc. The IPC contains a separate chapter on General Exceptions (Sections. 76-106) which
indicate the circumstances where absence of criminal intent is presumed. This is negative
method of applying the principle of mens rea in IPC. Thus, though the word mens rea as such
is nowhere found in the IPC, its essence is reflected in almost all the provisions of the Penal
Code. Every offence created under IPC virtually imports the idea of criminal intent or mens
rea in some form or other. The doctrine of mens rea has been applied by the Courts in India
and it is now firmly settled law that mens rea is an essential ingredients of offences.

In the case of R. Hariprasada Rao v. State [(1951) SCR 322] the Supreme Court ruled that
unless a statute either clearly or by necessary implication rules out mens rea as a constituent
element of crime, a person should not be found guilty of an offence, unless he had a guilty
mind at the time of commission of the offence. The Apex Court reiterated the same principle
in the case of State of Maharashtra v. M.H. George (AIR 1965 SC 722). This question was
once again agitated before the Supreme Court in the case of Nathu Lal v. State of M.P. (AIR
1966 SC 43). In this case the accused, a food grain dealer, applied for a licence and deposited
the requisite licence fee. He, without knowledge of rejection of his application, purchased
food grains and sent returns to the licensing authority who on checking found that it was in
excess of the quantity permitted by Sec. 7 of M.P. Food Grains Dealers Licensing Order,
1958. The accused was prosecuted but acquitted on the ground that he had no guilty mind.
The Supreme Court observed: “The accused was under a bona fide impression that the
licence in regard to which he had made an application was issued to him though not actually
sent to him. The fact that the licensing authority did not communicate to him the rejection of
his application, confirmed the accused’s belief. It was on that belief that he stored the food
grains and was sending returns to the concerned authorities. He could not, therefore, be said
to have intentionally contravened the statutory provisions.”

Exceptions to the Principle of Mens Rea:

There are certain exceptional cases in which mens rea is not required to be proved, these
exceptions are:

i. Offences which are made as such by the statute itself. For ex. the offence of waging war
against the State or

ii. the offence of kidnapping.

iii. All offences relating to public nuisance, private libel and contempt of court.
iv. Offences against the welfare of public (Social Welfare Offences). In these offences the
principle of strict liability is followed. For ex. offences under the Prevention of Food
Adulteration Act, 1954, or the Protection of Civil Rights Act, 1955.

v. The cases in which although the proceeding is criminal in form, but it is only a summary
mode of enforcing a civil right.

In this case only Actusreus is present. As the Menrea which is the essential element of
constituting a crime is absent. The mind of accused was not guilty. As he was unable to
understand the nature of the act, or that he is doing what is wrong or contrary to the
law. And the appellant is not guilty for the crimes which are the exceptions of the
mensrea as mentioned above.

➢ In absence of Mensrea does appellant convicted Under Section 302 was justified?
In absence of any mens rea, conviction under Section 302 I.P.C was unsustainable,
Bombay High Court: A Division Bench comprising of P.N. Deshmukh and M.G. Giratkar,
J., partly allowed a criminal appeal which was filed against the judgment of conviction under
Section 302 IPC passed by the trial court. The convict was accused of throwing chilli powder
at the deceased and other persons and strangulating the deceased to death. The case was that
the accused ran a liquor store, which was objected to by the deceased and other members of a
certain samiti. According to the appellant, the deceased was leading a mob of 50 people,
trying to enter her house. Apprehending threat and danger, the appellant got frightened and
threw chilli powder at the mob. She caught hold of the deceased by her hair and scuffled with
her only so that it would act as a deterrent for other persons from entering the house.
However, during the said scuffle, the deceased died accidentally. The appellant was tried and
convicted under Section 302 IPC. Aggrieved thus, the appellant filed the instant appeal. The
High Court perused the record very carefully. In light of the post-mortem report along with
evidence of witnesses, it was proved that death of the deceased was homicidal.
However, the Court was of the view that since the defendant did not have any intention
to kill the deceased, the conviction of the appellant was liable to modified from that
under Section 302 to Section 304.
Kartar Singh
Vs
State Of Punjab on 11 March, 1994

On the strength of the dictum, laid down in the above decision, they submitted that 'mens rea'
is an essential element in every offence and in the absence of proof 'mens rea' none can be
mulcted with any criminality especially in cases where deterrent sentence is called for.
The word 'established' is used in Article 21 in order to denote and ensure that the procedure
prescribed by law must be defined with certainty in order that those who are deprived of their
fundamental right to life or liberty must know the precise extent of such deprivation."
In a criminal action, the general conditions of penal liabilities are indicated in old maxim
"actus non facit reum, nisi mens sit rea" i.e. the act alone does not amount to guilt, it must be
accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is
that the legislature, under certain situations and circumstances,
In its wisdom may think it so important, in order to prevent a particular act from being
committed, to forbid or rule out the element of mens rea as a constituent part of a crime
or of adequate proof of intention or actual knowledge.
However, unless a statute either expressly or by necessary implication rules out 'mens rea' in
cases of this kind, the element of 'mens rea' must be read into the provisions of the statute.
The question is not what the word means but whether there are sufficient grounds for infer-
ring that the Parliament intended to exclude the general rule that mens rea is an essential
element for bringing any person under the definition of 'abet'.

Thereafter, a similar question arose in Nathulal v. State of M.p.34 as regards the exclusion of
the element of mens rea in the absence of any specific provision of exclusion. Subba Rao, J.
reiterated his earlier stand taken M.H. George36 and observed thus : (AIR p. 45) "Mens rea is
an essential ingredient of a criminal offence.

Doubtless a statute may exclude the element of mens rea, but it is a sound rule of
construction adopted in England and also accepted in India to construe a statutory provision
creating an offence i n conformity with the common law rather than against it unless the
statute expressly or by necessary implication excluded mens rea. The mere fact that the object
of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not
decisive of the question whether the element of guilty mind is excluded from the ingredients
of an offence.

Mens rea by necessary implication may be excluded from a statute only where it is absolutely
clear that the implementation of the object of the statute would otherwise be defeated."

"Section 5 of the Act of 1947 by itself makes no reference to mens rea.

Abetment of the contravention of the order is coupled together with
contravention itself in the same provision. It must, therefore, be treated as
standing on the same footing. In our view, therefore, the offence of
abetment also would not require any kind of mens rea." The above
observation would be tantamount to saying that "when no mens rea is
essential in the substantive offence, the same is also not necessary in the
abetment thereof'.

relying upon Dahyabhai Chhaganbhai Thakker vs. State of

Gujrat,1964(SCR361.)
It was next contended that the evidence of Mankarna
Chavan (D.W.1) and Gograbai Rathod (D.W.2), with regard to the unsoundness of mind
of the appellant has not been properly appreciated and wrongly rejected as insufficient.
The appellant belonged to a very poor family and they could not be expected to keep his
medical records and prescriptions meticulously. The defence witnesses had
deposed that the appellant was under the treatment of Dr. Kelkar at Akola.
There existed sufficient evidence for a plausible defence for unsoundness of
mind under Section 84 of the Indian Penal Code read with Section 105 of
the Evidence Act on a preponderance of the probability. The conviction was,
therefore, unjustified and the appellant was entitled to acquittal.

AW:1 – Statement of Dr. Pramod Thakore;

1”Above named prisoner is suffering from mental illness (psychosis) since unknown
duration. He is being treated and examined by several psychiatrists attached to
Govt. Medical College and Hospital , and Hospital Akola since January 2008
during specialists visit to prison.
2. This prisoner showed suicidal tendency , aggressive behaviour, disturb sleep, poor
communication and occasional erratic behaviour.

3. He was treated with a various antipsychotic drugs since January 2008 till
today… At present he is under controlled and may be referred to Mental Hospital
for futher investigations and expert opinions. “

➢ AW:2 & AW3- Statement of Mother and Sister of Appellant:

1.The mother and sister of the accused stated that devidas had to be tied up at times
and he was unable to take care of himself. They also stated that Dr. Keklar. who is a
psychiatric at akola who treats do the treatment of the accused.
. The prosecution did not deny the fact of a treating Psychiatrist at Akola, by the
name of .Dr. Kelkar, mentioned by the witness. The appellant and his family
were poor people and could hardly be expected to meticulously preserve medical
papers or lead expert evidence as observed in Ratan Lal (supra). Merely
because five years later in the witness box thewitness may have stated that there
was no complaint from the police with regard to the conduct of the appellant in
custody. The trial judge manifestly erred in his conclusion with regardto the mental
state of the appellant at the time of occurrenceby teshting it on the touchstone of the
present demenaour incourtandpresentconduct of the appellant, without any
reference to the medication that was being provided to the appellant while
in custody.Naturally, if the appellant was being provided proper medical
treatmentduringcustodyhiscondition would certainly improve over time.
Examination in chief: (Police Sub- Inspector) Mohan Singh

He stated that appellant was caught immediately after he made the assault on 26.09.2006 and
brought to the police station. The FIR was registered the same day. But the appellant
was taken in custody only on 28.0.2006 because he was not keeping welland had been
admitted in the hospital. The information of his arrest was not given to his sister or
mother, but only to his friend Nagorao Baghe, who has not been examined.

✓ In view of the previous history of insanity of the appellant as revealed, it was the duty
of an honest investigator to subject the accused to a medical examination immediately
and place the 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

PRAYER

Therefore, in the light of the issues raised, arguments advanced and the authorities
cited, it is humbly prayed that this Hon’ ble court may grant the following:-
 ➢ The defence of unsoundness of mind shall be pleaded to the appellant under Section
84 of the IPC.

➢ Declare that Devidas is insane and thus the charges upon him under Section 302 and
Section 324 to be dismissed.
And may pass any order or decree, judgement as this Hon’ ble court may deem fit in the light
of justice, equality and good conscience.
All of which is most humbly and respectfully submitted

Council for Appellant

POWER OF ATTORNEY

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

DEVIDAS……………………………………………………APPELLANT

VERSUS

STATE OF MAHARASHTRA………………………………RESPONDENT

KNOW ALL To whom these present shall come that I/we under signed appoint
HARMANJEET SINGH (ADVOCATE)

For the ……………… in the above mentioned case to do all the following facts deeds and
things or any of them that is to say:-
1.To act appear and plead in the above mentioned case in the court of any other court in
which the same may be tried or heard in the execution or in any stage or it progress until its
final decision.
2. Present pleading appeals letter patent appeal cross objection or petitions for execution
review, revision withdrawal compromise or other petitions or affidavit or other documents as
shall deemed necessary or advisable for the prosecution of the said case in all its stage.
3. To file and take back documents and to file application for restoration there of in case it is
dismissed in default.
4. To withdraw or compromise the said case or submit for arbitration any difference or
disputes that shall arise touching or in any manner relation to the said case.
5. To deposit draw any receive money and grant receipt there of and to do all other acts an
things which may be necessary to be done for the progress and in the case of prosecutions of
said case.
6. To employee and other legal practitioner authorizing him to exercise the power and
authorities hereby conferred on the advocate whenever he may think fit to do so.
And We hereby agree to ratify whatever the Advocate or his substitute shall do in the
promises.
And IWe hereby agree not to hold the Advocate or his substitute responsible for the result of
said for hearing case in consequence from the court when the said case is called up or for any
negligence of the said Advocate or his substitute.
And We hereby agree that in the event of whole or any part of fee agreed by me to be paid to
the Advocate, remaining unpaid he shall be entitled to withdraw from the prosecution of the
said case until the same is paid if any costs are allowed for an adjournment the advocate
would be entitled to the same.

IN WITNESS WHERE OF We agree to set my/our hands to the represent the contents of
which have been explained to understand by me/us this the .............
day ...... 20...

(Signature or Thumb Impression of Client)

Accepted
HARMANJEET SINGH (Advocate)