Lakhan Singh vs Amarjeet Singh

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 2022 INSC 1327

CRIMINAL APPEAL NO. 2191/2022 [Special Leave to Appeal (Crl.) No(s). 6533/2022]

LAKHAN SINGH Appellant

VERSUS

AMARJEET SINGH & ANR. Respondents

O R D E R

Dinesh Maheshwari, J.

Leave granted.

2. By way of this appeal, complainant of the criminal case

arising from FIR No. 211 of 2011 has questioned the order

dated 29.03.2022 passed by the High Court of Delhi at New

Delhi in Crl.M.A. No. 1828 of 2020 in Criminal Appeal No. 453

of 2019, whereby the High Court allowed an application moved

by the accused-applicant (appellant before the High Court-

respondent No.1 herein) with reference to Sections 311 and 391

of the Code of Criminal Procedure, 19731 and directed the

Trial Court to take on record the additional evidence and

documents, as mentioned in the subject application; and to

send the file back along with additional evidence.

3. Signature Not Verified The relevant background aspects of the matter are that Digitally signed by Ashwani Kumar Date: 2022.12.17

the said appeal bearing No.453 of 2019 has been filed by the 13:15:31 IST Reason:

1 ‘CrPC’, for short.

1 applicant-respondent No.1 against the judgment of conviction

dated 15.12.2018 and order on sentence dated 19.12.2018, as

passed by the Additional Sessions Judge, Tis Hazari Courts,

West Delhi in relation to FIR No. 211 of 2011, whereby he was

convicted of the offence punishable under Section 302 of the

Indian Penal Code, 18602 and was sentenced to imprisonment for

life with fine of Rs.1 lakh.

4. Looking to the nature of order passed by the High Court

and the order proposed to be passed by us herein, narration of

all the factual aspects is not necessary. Suffice it to notice

for the present purpose that while challenging the judgment

and order leading to his conviction and sentence, the

applicant-respondent No. 1 submitted before the High Court

that on the date of incident, he was of unsound mind and

hence, could not have been tried and convicted in this matter;

and such a relevant fact had not been considered by the Trial

Court. In support of this plea, the applicant sought to rely

upon, amongst others, the OPD Reports dated 12.07.2011 and

19.07.2011 along with the Medical Store Bill dated 12.07.2011;

and to examine the doctor who had attended on him and

prescribed the medicines as also the chemist who had supplied

such medicines. The applicant also made the submission that

he wanted to examine the Director, IHBAS, Dilshad Garden,

Delhi or any doctor from IHBAS to ascertain his medical

2 ‘IPC’, for short.

2 condition on the day of incident, as also his father, who was

having the original record of the said OPD Reports and Bill of

medicines.

5. After taking note of the contents of application and

the provisions of Section 391 CrPC3, the High Court noticed

that on behalf of the State, there was no objection to the

recording of evidence in respect of the plea of unsoundness of

mind, which the applicant intended to raise and which was not

considered in the trial; and also observed that the

contentions sought to be urged were going to the root of the

matter. On these considerations and with reference to the

General Exception provided in Section 84 IPC4, the High Court

deemed it appropriate to allow the applicant to lead

additional evidence before the Trial Court. Though the High

Court expressed that the appeal was remanded back but, issued 3 Section 391 CrPC reads as under: -

“391. Appellate Court may take further evidence or direct it to be taken.- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.”

4 Section 84 IPC reads as under: -

“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.”

3 directions that the Trial Court shall get the evidence

recorded after giving shortest possible dates and thereafter,

the file shall be returned along with additional evidence.

6. The relevant observations and directions of the High

Court read as under: -

“9.Keeping in view the facts and circumstances of the case before us and also the fact that the state has accorded no objection to the recording of the evidence in respect of the plea of insanity, which the appellant now intends to raise, as the same were not considered during the course of the trial, and also the circumstance that the contention raised at this stage by the appellant does go to the root of the matter; the appellant wants to place on record documents pertaining to his mental condition as well as wanting to examine the witnesses in support of his contention; and the same in our considered opinion does not amount to filling up the lacuna in the present case. The plea of insanity is covered under general exceptions under Section 84 of the Indian Penal Code and the same would definitely have a bearing on this case. Even otherwise it is pertinent to observe that the Applicant/Appellant had in fact raised the issue of his being of unsound mind at the stage of trial before the learned Additional Sessions Judge which was dismissed and declined vide order dated 20.02.2014. Thus, in this view of the matter, and in the interest of justice, we consider it appropriate to allow applicant/appellant to lead additional evidence before the learned Trial Court.

10. Appeal is remanded back with the directions to learned Trial Court to take on record the additional evidence and documents as mentioned in the subject application, under Section 311 of Code of Criminal Procedure, 1973 dated 23.01.2020. Let the file be placed before the learned District Judge – Tis Hazari Courts to mark the case to the concerned Trial Court and the concerned Trial Court shall fix a shortest possible date for recording of the evidence. The Trial Court shall not give more than one opportunity to the applicant/appellant to lead the additional evidence as prayed for and shall not give any unnecessary adjournments.

4 Thereafter, the file shall be sent back to this Court along with additional evidence recorded.”

7. Seeking to challenge the order aforesaid, learned

counsel for the complainant-appellant has argued that the

order dated 20.02.2014, as referred to by the High Court in

the order impugned, was indeed considered and affirmed by this

Court in the order dated 12.10.2015 in Criminal Appeal Nos.

1345-1346/2015; and the impugned order, as passed by the High

Court, does not stand in conformity with the order so passed

by this Court.

7.1. Learned counsel has further submitted that during the

course of trial, two-fold submissions were made in the

application dated 17.11.2011 moved on behalf of the accused-

applicant: one about his mental illness at the time of

incident and another about his unsoundness of mind during the

trial; and sought relief in terms of Section 330 CrPC. Learned

counsel would submit that in the order dated 20.02.2014, the

application so made was duly considered by the Trial Court and

then, the same was dismissed with reference to the deposition

of witnesses examined for the purpose. Learned counsel has

pointed out that in the order dated 20.02.2014, the Trial

Court, inter alia, found and held as under:-

“18. I am of the view that in view of medical board report dated 06.02.2013, the deposition of CW-1 & CW- 2 and in view of further report dated 01.01.2014 of IHBAS, the accused is fit to face trial. The accused is not incapable of making his defence. The application under Section 330 CrPC filed by Sunehera

5 Singh father of the accused is without any merits and same is hereby dismissed. With this application is disposed off.”

7.2. Learned counsel has further submitted that the said

order came to be specifically affirmed by this Court in the

order dated 12.10.2015, that reads as under: -

“Leave granted.

The instant appeal has been filed by the father- in-law of the deceased, assailing the orders passed by the High Court, suspending the trial of the respondent-Amarjeet Singh. The question which came to be considered by the High Court, related to the mental fitness of the respondents to face trial. Insofar as the instant aspect of the matter is concerned, the High Court relied on the first medical evaluation conducted by a Medical Board on 06.02.2013. It also relied on the statement of two Court witnesses examined by the Trial Court, namely, CW-1 on 20.07.2013 and CW-2 on 11.10.2013.

In addition to the above, the High Court also took into consideration a second report of the Medical Board dated 01.01.2014. In both the aforementioned Medical Reports, and also, the statement made before the trial court by the two court witnesses, respondents had been considered to be fit to face the trial.

In the above view of the matter and keeping in mind the opinion/statements of experts on the subject, we are satisfied that the direction issued by the High Court on 04.09.2014, to suspend the trial, was not justified. The impugned order passed by the High Court is accordingly set aside. The order passed by the trial court dated 20.02.2014, affirming the fitness of the respondents to face trial, is confirmed.

In the above circumstances, the appeals stand allowed.”

7.3. Learned counsel would submit that both the issues as

regards mental capacity of the applicant-respondent No.1 at

the time of incident as also during the course of trial stand

6 concluded by the aforesaid orders; and the High Court has not

been justified in granting opportunity for further evidence on

the very same aspects.

8. Per contra, learned counsel for respondent No.1 has

submitted that in the order dated 20.02.2014 passed by the

Trial Court as also the order dated 12.10.2015 passed by this

Court, only the aspect as regards the mental capacity of the

applicant–respondent No.1 to face the trial came to be

considered and pronounced upon but, his mental capacity at the

time of incident and his capacity to know the nature of his

acts definitely remains a question for consideration and

hence, the High Court has not committed any error in allowing

evidence to be adduced in that regard before the Trial Court.

8.1. Learned counsel would further submit that the High

Court having taken a particular view which remains just and

proper and serves the cause of justice, no interference is

called for.

9. Learned ASG appearing for the State has duly assisted

us with reference to the provisions of Sections 311, 391 and

330 CrPC.

10. Having given thoughtful consideration to the

submissions made and having examined the record, we are

clearly of the view that the order impugned cannot be

sustained for more than one reason.

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11. Insofar as the question of unsoundness of mind of the

respondent No. 1 is concerned, it is noticed that in the

application moved before the Trial Court in reference to

Section 330 CrPC, it was precisely the contention on his

behalf that he was suffering from mental illness during the

period of incident. It was also submitted that being of

unsound mind, he was incapable of making his defence. It is

also noticed that in the earlier round of proceedings, the

High Court set aside the order dated 23.02.2012 passed by the

Trial Court and issued directions for examination of

respondent No.1 from the specialist/medical board. Thereupon,

the file was sent to the concerned Magistrate to get the

applicant examined by the medical board. After receiving

report from the medical board that respondent No. 1 was fit to

stand trial, the Trial Court posted the matter for examination

of witnesses and in fact, examined two Doctors as CW-1 and CW-

2 respectively. After taking note of the entire evidence on

record, the Court found that the respondent No. 1 was fit to

face the trial and was not incapable of making his defence.

Thus, the application was rejected. This Court approved the

order so passed by the Trial Court, particularly in view of

the opinion/statement of the experts and found no

justification in the High Court interfering with the matter.

12. In the given set of facts and circumstances, when the

8 evidence was indeed taken for the purpose of dealing with the

plea put forward on behalf of the applicant-respondent No.1;

and a specific view was taken by the Trial Court, which was

affirmed by this Court with reference to the evidence

available on record, we find it difficult to approve the

approach of the High Court in permitting further evidence of

the same nature to be adduced and for that purpose, sending

the matter to the Trial Court.

13. The procedure as adopted in the present matter is

difficult to be approved, more particularly when specific

evidence as regards mental condition of the applicant–

respondent No.1 is already on record and then, it is also seen

that the aspect of his mental incapacity was sought to be put

forward by respondent No.1 himself by entering into witness-

box and getting himself examined as DW-2. The facts and

conclusions in the orders passed by the Trial Court and by

this Court are available before the High Court. The High Court

dealing with the appeal ought to have examined the material on

record before taking a decision as to whether any further

evidence was required in the matter or not. Secondly, if at

all any further evidence was considered requisite, in the

totality of circumstances of the present case and nature of

plea sought to be raised, such evidence could have been taken

by the High Court itself or by directing the registry to do

9 the same, of course, after recording specific reasons

therefor.

13.1. Put in a nutshell, it is apparent that while passing

the order dated 29.03.2022, neither the order passed by this

Court on 12.10.2015 has been taken note of by the High Court

nor even the evidence already available on record has been

examined by the High Court.

14. The proposition of taking additional evidence in a

criminal appeal cannot be adopted as a matter of course by the

Appellate Court and in fact, the occasion for the Appellate

Court to take a considered decision on the prayer for adducing

additional evidence in appeal could arrive only after the

appeal itself has been heard on merits and not before. Taking

up an application moved in the appeal for permission to lead

additional evidence and deciding the same without hearing the

parties on merits of the appeal and without examining record

of the case and the reasoning that has prevailed in the Trial

Court, in our view, cannot be countenanced.

15. In the aforesaid view of the matter, the impugned order

dated 29.03.2022 deserves to be and is hereby set aside and

the appeal i.e., Criminal Appeal No.453 of 2019, stands

restored for reconsideration of the High Court in accordance

with law.

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16. Having regard to the circumstances of the case, though

we are not approving the order dated 29.03.2022 but, while

restoring the appeal for consideration on merits, we would

also restore the said application, Cr.M.A. 1828 of 2020, as

moved by the applicant-respondent No.1, which may be

considered at an appropriate stage by the High Court in

accordance with law; and appropriate orders may be passed, as

deemed fit and necessary in the facts and circumstances of the

case.

17. The parties through their respective counsel shall

stand at notice to appear before the High Court in Criminal

Appeal No.453 of 2019 on 10.01.2023.

18. In the totality of the circumstances of the case, the

interim arrangement made by the High Court in its order dated

15.09.2022 during the pendency of the appeal shall continue

until the first date of appearance of the parties before the

High Court i.e., 10.01.2023.

19. It goes without saying that we have not made any

comments on merits of the case either way; and all the aspects

relating to the merits remain open to be argued by the parties

before the High Court.

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20. With the observations, relaxations and requirements

foregoing, the appeal stands allowed.

……………………………………………J. [DINESH MAHESHWARI]

……………………………………………J. [SUDHANSHU DHULIA] New Delhi;

December 6, 2022.

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ITEM NO.30 COURT NO.7 SECTION II-C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 6533/2022

(Arising out of impugned final judgment and order dated 29-03-2022 in CRLMA No. 1828/2020 in Crl.A. No. 453/2019 passed by the High Court Of Delhi At New Delhi)

LAKHAN SINGH Petitioner(s)

VERSUS

AMARJEET SINGH & ANR. Respondent(s) ( IA No. 90524/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No. 96392/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 06-12-2022 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE SUDHANSHU DHULIA

For Petitioner(s) Mr. Tanmay Mehta, Adv.

Mr. Lakshya Gupta, Adv.

Mr. V. K. Sidharthan, AOR

For Respondent(s) Mr. Roshan Santhalia, AOR MS. Suruchi Jaiswal, Adv.

Mr. Vikramjeet Banerjee, ASG Mr. P.V. Yogeswaran, AOR Ms. Vishakha, Adv.

Mr. Raghav Sharma, Adv.

Mr. Akshit Pradhan, Adv.

Ms. Shruti Agarwal, Adv.

Ms. Janhvi Prakash, Adv.

Mr. Kartik Dey, Adv.

Mr. Gurmeet Singh Makker, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal stands allowed in terms of the signed reportable order.

Pending applications also stand disposed of.

(MEENAKSHI KOHLI) (VIDYA NEGI) ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR

[Signed reportable order is placed on the file]

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