Insanity defense must be substantiated by adequate evidence of unsoundness at the time of offense; mere assertion is insufficient to shift the burden of proof.

ORDER :

M.I. ARUN, J.

The writ petition is filed with the following prayers:

"a. Issue a Writ of Certiorari or any other appropriate Writs or orders, quashing the impugned order dated 28-12-2023 which is produced as Annexure 'A', passed by Hon'ble I Addl.District and Sessions Judge, D.K at Mangaluru in S.C.No.69/2020, consequently allowing the said applications produced as Annexure H and Annexure J and

b. Grant such other and further reliefs as this Hon'ble deems fit to grant under the circumstances of the case, in the interest of justice and equity.”

2. The petitioner is the accused in S.C.No.69/2020, pending on the file of I Additional District and Sessions Judge, Dakshina Kannada, Mangaluru. The petitioner is accused of murdering one Sri. Vincent D'Souza and one Smt. Helen D'Souza by stabbing. The petitioner has admitted, killing of the said two persons but has pleaded the defence of insanity before the trial Court. He has examined eight defence witnesses and has got marked certain exhibits through them. DW6 is the psychiatrist who has treated the petitioner in prison. He has not examined any other psychiatrist. The petitioner has filed two applications, one under Section 45 of the Indian Evidence Act read with Section 311 of the Criminal Procedure Code (for short, 'the Cr.P.C) with the following prayers:

"Hence it is humbly prayed that this Hon'ble may please to send copies of medical records of year 2000 to 2002 and medical records procured from the jail and all the complaints filed by the accused against the neighbours and replies given by the parties and police report and the complaint of present case to Forensic Psychiatry Department of NIHMANS and direct them to examine the material and give their expert opinion in evidence within stipulated time as this Hon'ble Court deems fit herein in the interest of justice."

The other application is filed under Section 105 of the Mental Health Care Act, 2017 with the following prayers:

"Hence under these circumstances, it is prayed that Hon'ble Court shall be pleased to refer the same for further scrutiny to the concerned Board as stated under the Section 105 of Mental Health Care Act and for the proper diagnosis this Hon'ble may please to send copies of medical records of year 2000 to 2002 and Medical records procured from the jail and all the complaints filed by the accused against the neighbors and replies given by the parties and police reports.

And the Hon'ble Court may be pleased to pass any necessary orders therein in the interest of justice."

3. The trial Court has dismissed both the applications. Challenging the same, the present writ petition is filed.

4. The question that arises for consideration is:

Whether the petitioner has made out a case for setting aside the impugned order and to allow the applications as prayed for?

5. Admittedly, the act of killing the deceased by the petitioner is admitted by the petitioner herein. He has set up a defence of unsoundness of mind and has contended that he did not have the necessary mens rea at the time of commission of the offence. Under the said circumstances, the onus is on the petitioner to establish that he did not have the necessary mens rea at the time of killing of the deceased.

6. Section 105 of the Indian Evidence Act, 1872 reads as under:

"105. Burden of proving that case of accused comes within exceptions.

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, 1860 (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances."

7. Section 84 of the Indian Penal Code, 1860 (for short, 'the 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,