ARGUMENTS ADVANCED

I. THE ACCUSED IS NOT GUILTY FOR THE OFFENCE OF MURDER

It is humbly submitted that the accused is not guilty for the offence of murder under the
Indian Penal Code, 1860.1 In the instant case, the extra judicial confession by the accused
cannot be relied upon as a conclusive evidence for the conviction of the accused [A].
Secondly, the judicial confession by the accused cannot be relied upon for conviction [B].
Lastly, the defence of insanity protects the accused from conviction in the instant case [C].

A. THE EXTRA JUDICIAL CONFESSION CANNOT BE RELIED UPON IN THE INSTANT CASE

In 2012, the Hon’ble Supreme Court in the case of Sahadevan & Anr. v State of Tamil Nadu,2
reiterated the principles pertaining to extra judicial confessions. The Court clearly observed
that an extra-judicial confession is a weak evidence by itself. It has to be examined by the
Court with great care and caution.

Further, in Mohan Singh Balwant Singh v. State,3 the Court stipulated that:

“The police investigating agency in our country has not yet acquired the reputation of being
proof against the temptation of attempting to secure confessions by questionable methods; the
Magistrates recording confessions are therefore expected to devote due attention to all the
safeguards provided for ensuring their truly voluntary character.”

In the instant case, it is clear from the facts that while the accused (i.e. Mr. Abhinandan) was
making the extra judicial confession, a number of villagers along with the chowkidar and
dafadar were present. The extra judicial confession must therefore be excluded from
consideration altogether as it is highly probable that such a confession was made due to
undue mental torture and pressure by the law enforcement officers such as the Chowkidar and
Dafadar.

B. THE JUDICIAL CONFESSION CANNOT BE RELIED UPON IN THE INSTANT CASE

It is submitted that the judicial confession by Abhinandan before the First-Class Magistrate in
Lucknow cannot be relied upon for conviction in the instant case.

1
S. 302 Indian Penal Code, 1860
2
3
AIR 1965 Punjab 291
The Magistrates recording confessions are expected to devote due attention to all the
safeguards provided for ensuring their truly voluntary character.4 It is reasonable and
expected to give an accused person at least 24 hours to decide whether or not he should make
the confession.5

Therefore, a reasonable interpretation of the above authorities would clearly suggest that
given the highly incriminating nature of a judicial confession, sufficient opportunity should
be given to the accused to contemplate the decision of making a confession.

In the instant case, sufficient time was not provided to Abhinandan by the Magistrate to think
about the decision of making a confession. The mind of the accused could not have been
expected to be completely free of influence and pressure in such a short span of time, that too
after staying a night in the lock-up.

C. THE DEFENCE OF ‘UNSOUNDNESS OF MIND’ PROTECTS THE ACCUSED IN THE INSTANT

CASE

 The nature and essentials of the defence

Section 84 of the Indian Penal Code, 1860 provides for the defence of unsoundness of mind
or insanity. The section states that:

“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 doing the act, or that he is doing what is either wrong or
contrary in law.”6

The essentials of Section 84 of the Indian Penal Code, 1860 are based on the Mc’ Naghten
Principles.7 The principles provide that:

(i) To establish the defence of insanity, it must be clearly proved that at the time of
committing the crime, the person was so insane as not to know the nature and quality of the
act he was doing or if he did know it, he did not know that what he was doing was wrong.

(ii) The test of wrongfulness of the act is in the power to distinguish between right and
wrong, not in the abstract or in general, but in regard to the particular act committed.

4
ibid
5
Sarwan Singh v. State of Punjab AIR 1957 S. C. 637 (A)
6
Section 84 Indian Penal Code, 1860
7
R v. Mc’Naghten
The burden under Section 84 is not a burden as heavy as a prosecution burden. In
determining insanity for the purposes of Section 84 the circumstances which preceded,
attended or followed the crime are a relevant consideration.8 Further, the use of the word
‘unsoundness of mind’ has the advantage of doing away with the necessity of defining
insanity and of artificially bringing within its scope different conditions and affliction of the
mind which ordinarily do not come within its meaning.9

This section will apply even in cases of fits of insanity and lucid intervals. It must be proved
in such cases that at the time of commission of the offence, the accused was surfing from a fit
of insanity which rendered him incapable of knowing the nature of his act. The relevant facts
are motive for the crime, the previous history as to mental condition of the accused, the state
of his mind at the time of the offence. 10

 Specific factual circumstances replicating the case at hand

In the Shibo Koeri case, the accused killed his uncle by severing his head and neck with a
sword while shouting ‘Victory to Kali’, and thereafter attempted to strike others including his
father. It was held that the accused’s case fell within the category of cases wherein a man by
reason of delusion is unable to appreciate the distinction between right and wrong. It was
found that the accused was suffering from a fit of insanity at the time he attacked the
deceased with the sword and was by reason of unsoundness of mind, incapable of knowing
that he was doing an act which was wrong or contrary to law, and hence he was acquitted of
the charge of murder.11

The law on the point has been well summarised by their Lordships of the Calcutta High Court
in Kader Nasayer Shah in the following words:

“A man who may kill a child under an insane delusion that he is saving him from sin and
sending him to heaven is incapable of knowing by reason of insanity that he is doing what is
morally wrong, and therefore not liable under the Criminal Law.”12

A consideration of the above authorities wold clearly give rise to the defence of ‘unsoundness
of mind’ in the instant case. The previous history as to the mental condition of the accused
substantiates the claim for a defence of ‘unsoundness of mind’. The accused, Abhinandan,

8
https://www.lawteacher.net/free-law-essays/medical-law/lunacy-or-unsound-mind-mental-abnormality.php
9
Shamsul Huda, Principles of Law of Crimes in British India, (India Publisher, Calcutta, 1902) p 271
10
Dayabhai Chhaganbhai Thakkar V. State of Gujarat
11
Shibo Koeri, (1905-06) 10 CWN 725.
12
1896 ILR 23 Cal 604 (608).
was reported to have regular delusions and hallucinations wherein he would dress up like a
female and claim himself to be goddess Durga. Under such influence, he would sing, dance
and sometimes even becomes violent.

On the day of the crime i.e. 26th July 2018, the accused after coming back home mentions to
the victim (the wife) that the world is behaving like Asura and CEO is Mahishasura for
reducing his pay, causing him huge mental trauma.

Even the second test for invoking the defence based on an analysis of the mental condition of
the accused while committing the offence has been satisfied in the instant case. While
committing the offence, Abhinandan started chanting mantras and shouted that he will
eliminate all demons. The accused while committing the offence, clearly wasn’t in a mental
condition to analyse the moral side of his actions. As per the “right and wrong” test, he
wasn’t able to distinguish between right and wrong while committing the offence as he was
under a delusion that he was Goddess Durga and was cast a duty to wipe of evil.

It is submitted that the defence of ‘unsoundness of mind’ clearly applies in the instant case
and therefore, the accused is not guilty of the offence of murder. If a madman kills a someone
during the time of his lunacy, it cannot be said to be a criminal act as it is not an expression of
an understanding of will and is guided by madness alone.

II. ARGUENDO, EVEN IF THE ACCUSED IS GUILTY OF MURDER, A LENIENT PUNISHMENT

SHOULD BE PRONOUNCED IN THE INSTANT CASE

There are certain factors in the impugned case which act as mitigating factors in terms of the
quantum of punishment that should be awarded to the accused. The accused is a mentally
unstable man whose instability was triggered by the treatment he received in his professional
life.

In a similar case, the Patna High Court imposed a moderate punishment, less severe than the
one imposed by the Trial Court considering the mental instability of the accused and the
personal and social life of the accused.13

Therefore, in the interest of justice it is submitted that a lenient to moderate punishment

should be pronounced in the instant case, if the accused is found guilty of the said crime.

13
Dasrath Paswan vs State Of Bihar AIR 1958 Pat 190
 PRAYER

Wherefore in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, may this Hon’ble court be pleased to adjudge and declare that:

1. The accused is not guilty for the offence of murder under the Indian Penal Code, 1860.

Arguendo, even if the accused is guilty,

2. A less severe punishment is to be pronounced.

And pass any other order that it may deem fit in the interest of justice, equity and good

conscience.

SD/-
Counsel for the Accused.