Criminal Appeal No.465 of 2002

17th August, 2004

Petitioner Counsel: Shri. S. S. KAZI
Respondent Counsel: Shri. K. S. PATIL

Cases Cited:
Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, AIR 1964 SC 1563 [Para 3]
Ratan Lal Vs. State of Madhya Pradesh, AIR 1971 SC 778 [Para 3]
Sheralli Wali Mohammed Vs. State of Maharashtra, AIR 1972 SC 2443 [Para 3]
Shrikant Anandrao Bhosale Vs. State of Maharashtra, AIR 2002 SC 3399 [Para 3,7,8]
Brushabha Digal Vs. State, 1993 Cri.L.J. 3149 [Para 3]
Tubu Chetia Vs. State of Assam, 1976 Cri.L.J. 1416 [Para 3]

JUDGMENT

B. H. MARLAPALLE, J. :- This appeal arises from an order of conviction and sentence recorded by the learned IInd Additional Sessions Judge, Jalna, in Sessions Case No.4 of 2001, on 15th April, 2002, for the offence punishable under Section 302 of I.P.C., inasmuch as, the appellant had killed his two minor daughters, by name, Shahanaz and Najama.

2. As per the prosecution case, the appellant/accused was married to Sayarabi about 12 years prior to the date of incident. They begot two sons and four daughters. However, the sons had died immediately after their birth. The names of the daughters were Parvin, Shahnaz, Najama and Sultana. The last daughter was an infant on the date of the incident, whereas Parvin was about 9 years; Shahnaz was about 6 years; Najama was of 3 years and Sultana was few months old. They were initially staying at village Kanphodi and the accused was not doing any work inspite of his parents telling him to undertake some work. The couple, therefore, shifted to the nearby village Rohina where parents of Sayarabi were staying. The distance between the two villages is about 2 miles. They had constructed a hut with tin shed roof.

On 25-5-2000, the accused asked his wife to go to Kanphodi and bring back Parvin who was staying with his parents for some days. She, therefore, left from Rohina at about 10 a.m. and came back with daughter Parvin to Rohina at about 12.30 noon. She did not return home as her husband met her at S.T. Stand only and told her to take back Parvin to village Kanphodi. She, therefore, again went to village Kanphodi. She returned to village Rohina at about 10 p.m. after dropping Parvin at village Kanphodi. When she went home, her husband did not allow her to cook and they went to bed. He got up in the midnight and, therefore, she asked him as to what had happened. He informed her that he had killed Shahnaz and Najama by strangulation with rope of mosquito net and kept their dead bodies in different boxes in the house. She went to see boxes so as to check the veracity of his statement and at that time, he ran away. She opened the boxes and noticed the dead bodies of both the children and raised shouts. She went to her parent's home and also met the Sarpanch Namdeo (PW 2) who was the neighbour of her parents. Police was called. In the presence of her parents and villagers, the iron boxes were opened and the dead bodies of the two daughters were found. The mortal remains of Shahnaz were kept in bigger box, whereas Najama's dead body was kept in the small box. Along with the Sarpanch, she went to Police Station at Partur and filed F.I.R. Exhibit 30. Both the dead bodies were sent for post mortem. The accused was taken in custody on 26/5/2000 at about 11 a.m. but not from his house. After investigation, charge sheet was filed and the case was committed to the Sessions Court.

In rebuttal, the accused had pleaded insanity and thus sought protection of Section 84 of I.P.C. Even in this statement recorded under Section 313 of Cr.P.C., he had taken a plea that he was not having any capacity to understand at the relevant time. He was examined by Dr. Netto Stainly (DW 1), a Psychiatrist attached to the Regional Mental Hospital at Yerwada, Pune. The trial Court did not find case for prosecution under Section 84 of I.P.C. and held that the prosecution proved, beyond reasonable doubt, that the accused was guilty of murdering his daughters by strangulation on 25-5-2000 while his wife was away from house with the eldest and youngest daughters.

3. We are, therefore, required to consider the sole issue, as to whether the accused had made out a case of his suffering from insanity at the relevant time when he committed the crime of killing two of his minor daughters on 25-5-200 at village Rohina. Shri. Kazi, learned Advocate appearing for the accused read through the evidence of the witnesses and more particularly, Sayarabi (PW 1), Sayed Kasim (PW 3) and Dr. Netto Stainly (DW 1). As per him, this is a fit case where the defence has reasonably proved that the accused was in a mentally unfit condition and he was suffering from schizophrenia not only at the time he had committed the crime but earlier as well as later. The trial Court fell in gross error in rejecting the plea of the accused regarding his suffering from schizophrenic attacks and he was under such an attack when he committed the crime. In support of these contentions, reliance has been placed on the following decisions of the Supreme Court :

(i) Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, (AIR 1964 SC 1563);

(ii) Ratan Lal Vs. The State of Madhya Pradesh, (AIR 1971 SC 778);

(iii) Sheralli Wali Mohammed Vs. State of Maharashtra, (AIR 1972 SC 2443);

(iv) Shrikant Anandrao Bhosale Vs. State of Maharashtra, (AIR 2002 SC 3399);

The learned Advocate for the appellant/accused has also relied upon the decision of the Orissa High Court in the case of Brushabha Digal Vs. State (1993 Cri.L.J. 3149) and the decision of Gauhati High Court in the case of Tubu Chetia Vs. The State of Assam (1976 Cri.L.J. 1416).

Shri. Patil, learned Additional Public Prosecutor, on the other hand, has supported the reasoning given by the trial Court holding that the accused was not suffering from any mental disorder at the time he committed the offence i.e. on 25-5-2000 and there was no medical evidence in this regard, even through Dr. Netto Stainly (DW 1). He urged that the onus of proving that there was a reasonable case of the accused suffering from mental disorder falls squarely on the defence and to discharge this burden Dr. Netto Stainly (DW 1) came to be examined. The testimony of Dr. Netto Stainly (DW 1) did not support the case of the defence. The learned Additional Public Prosecutor, therefore, urged that the order of conviction and sentence is required to be confirmed by us.

17th August, 2004.

4. In addition to the testimony of Dr. Netto Stainly (DW 1), we are also required to consider the evidence of Sayarabi (PW 1), the wife of the accused. In her deposition before the trial Court, she stated that she was married to the accused for about 12 years prior to the date of incident and she gave birth to two sons and four daughters. The sons died immediately after their birth and the accused was complaining that she was giving birth to daughters. The accused was not doing any work while at Kanphodi where his parents were also staying and, therefore, they had shifted to village Rohina, 2 miles away from village Kanphodi and her parents were residing at village Rohina. She had left her house on the fateful day at about 12 Noon to go to village Kanphodi so as to bring the eldest daughter Parvin back. She left Parvin at Kanphodi and returned to village Rohina at about 10 a.m. Her husband had remained at home along with the two deceased daughters and when she returned to village Rohina, he met her at the S.T. Stand and informed that he had sent Shahnaz and Najama to village Kanphodi in a private jeep. Both of them returned home and asked her not to cook food as the three daughters had gone to village Kanphodi. They went to sleep without taking food, but the accused got up in the midnight. When she inquired with him, he told her that he had killed Shahnaz and Najama and kept their dead bodies in the tin boxes lying in the room. He also confessed to have killed them by strangulating with a rope of mosquito net. As she went to see the boxes, he ran away and, therefore, she raised shouts. Her parents and some other villagers came at the spot and when the boxes were opened, the dead bodies of Shahnaz and Najama were seen. There were marks of rope on their necks. In the small box, the dead body of Najama was seen and in the bigger box, the dead body of Shahnaz was seen. The green nylon rope was shown to her in the Court and she confirmed the same as Article 'G'. She further stated that the accused killed the two daughters as the couple did not have any son and they had only four daughters. He always used to say that the wife was giving birth to daughters only.

In the cross examination, Sayarabi (PW 1) has stated that the accused was working as a farm labourer with one Aba Kale at village Kanphodi for 2 years and thereafter he stopped to do any work. He used to sit in the house and was not going outside. When asked as to why he was not going to work, he used to reply that he was not interested in doing any work. She admitted that the accused was taken for medical treatment on account of his mental conditions about one year before the incident. She had also called 'Mantrik' and tied 'Gandedore' to the accused. She also admitted that she left village Kanphodi and went to village Rohina where her parents were residing as the accused was not doing any work and was mentally unsound. Her house consisted of only one room and there was no electricity. It was surrounded by residential houses. The height of Shahnaz was more than the box in which her dead body was kept and, therefore, the accused had folded the body. To a specific query about the mental condition of the accused on the day of the incident, she stated, "It is not correct that on the day of the incident, my husband's mental condition was not sound; he had taken his meals in the morning." She also denied the suggestion that she was falsely implicating the accused.

5. Now, coming to the medical evidence of Dr. Netto Stainly (DW 1), he was a practising Psychiatrist from 1983 and was attached to the Regional Mental Hospital at Pune. He claimed to have treated about 2,000 patients who were having criminal history. The accused was brought to him at the Mental Hospital at Yerwada, for the first time, on 23-6-2000 at about 5.45 p.m. by the Police pursuant to the reception order by the Judicial Magistrate (F.C.) at Partur. He was having suicidal tendency of severe degree and was depressed. The witness diagonized the accused as having schizophrenia with depression and the patient was having delusion of guilt. The patient was talking irrationally and was lacking in sight. He was in weeping spells and was avoiding eye contact. He expressed suicidal ideas and was treated up to 27-10-2000 and during the said period of admission, the witness was regularly interviewing the accused with other Psychiatrists. The relatives of the accused did not come to meet him even though history sheet was sent on 8-7-2000. As per the history given by the accused, he had attempted to hang himself but survived due to breaking of rope. He was kept under special watch and was given electro convulsive therapy. Though normally each mental patient requires minimum 6 shocks and maximum 12, in one period, the accused was given 10 shocks besides anti-psychotic and anti-depressant drugs. He had shown improvements after 10 E.C.T. on 11-8-2000 and thereafter he became calm and manageable. He was discharged on 27-10-2000 on showing improvements and with directions to continue the treatment under the supervision of Psychiatrist. On 15-9-2000, he was put up before the visitor's committee and was declared sound mind and fit for trial.

On 27-5-2001, the accused was again brought to the hospital as per the orders of Sessions Court, Jalna. On examination, it was found that the accused was talking irrationally, he was untidy, his psychomoto activity was increased, he was lacking in sight and, in general, he was depressed and was having suicidal ideas intermittently. He was required to be given 16 electric shocks (E.C.T.) and anti-psychotics and anti-depressants. He was treated up to 24-9-2001 as an indoor patient. On 7-9-2001, he was put up before the visitors' committee and was found fit for trial and discharged (Exhibit 60). The accused as was found on 23-6-2000 might have reached the stage after months or even a day and, therefore, he could not opine as to how long the patient might be suffering from schizophrenia and depression. There are different types of schizophrenia like simple, paranoid, acute, chronic and catatonic. The accused was not suffering from mixed symptoms and it could not be categorized as hebephrenia. He was neither catatonic schizophrenic. He was nearer to such type schizo effective. On the question put up by the Court, this witness stated that if a person is sitting idle and is talking to himself or laughing without reason or getting angry without reason, it could be due to psychological disorder or due to other reasons. He could not opine about the same unless he had examined the patient at that time. He could not opine about the mental condition of the accused as on 25-5-2000. He recorded that the accused was having delusion of guilt as he was insisting of seeing his wife behaving indecently. The Doctor further admitted that it was possible that a person killing of his own daughters in normal state of mind may get into depression due to his own acts.

6. It is thus clear that Sayarabi (PW 1), the wife of the accused, had specifically stated before the trial Court, that on the date of commission of the crime, he was not mentally unsound and he had his normal activities on that day i.e. 25-5-2000. Dr. Netto Stainly (DW 1) also stated that he could not say anything about the alleged mental unsoundness of the accused on the date of incident and to end his cross examination, he opined his specialized view saying, "It is possible that a person killing of his own daughters in normal state of mind may get into depression due to his own acts". The incident had taken place on 25-5-2000 and the accused was produced before the said Doctor on 23-6-2000 i.e. after about a month or so. As per the medical opinion, from 23-6-2000 onwards, the accused was under schizophrenic attacks on and off and not continuously. The wife did admit in her deposition before the trial Court, that the accused was sitting idle, did not talk and did not take any employment, as he was not interested in working. He was also taken for some medical treatment at Mantha for his disorderly behaviour. But these depositions cannot be treated to be a medical evidence nor can they support the defence case, that as on the date of commission of the crime, the accused was in mentally unsound conditions.

7. In the case of Shrikant Anandrao Bhosale (supra), while granting benefit of protection under Section 84 of I.P.C., the Apex Court noted that the following circumstances stood proved in that case, namely;

(A) The appellant had a family history - his father was suffering from psychiatric illness.

(B) Cause of ailment not known hereditary plays a part.

(C) Appellant was being treated for unsoundness of mind since 1992 - Diagnosed as suffering from paranoid schizophrenia.

(D) Within a short span, soon after the incident from 27th June to 5th December, 1994, he had to be taken for treatment of ailment 25 times to hospital.

(E) Appellant was under regular treatment for the mental ailment.

(F) The weak motive of killing of wife - being that she was opposing the idea of the appellant resigning the job of a Police Constable.

(G) Killing in day light - no attempt to hide or run away.

The appellant, as per the prosecution case, was a Police Constable and on the date of the incident, the couple was staying in the Police Quarter along with their daughter. On the morning of 24th April, 1994, there was a quarrel between husband and wife was washing clothes in the bathroom, the appellant hit her with grinding stone on her head. She was taken to the hospital and declared dead. The appellant was immediately taken by the police to the quarter guard.

8. If we analyze the circumstances in the case before us, the following circumstances distinguish the same from the case of Shrikant Anandrao Bhosale (supra):

(a) The accused asked his wife initially to go to village Kanphodi to bring the elder daughter Parvin and the wife accordingly had brought the said daughter back to village Rohina.

(b) The accused sent his wife back to village Kanphodi to leave the eldest daughter at Kanphodi only with his parents rather than allowing her to live at village Rohina and, therefore, the wife again went back to village Kanphodi. On her second trip, she returned to village Rohina at 10 p.m.

(c) The wife was thus out of the house for about 10 to 12 hours on the date of incident and in the meanwhile, the accused was alone with his two deceased daughters.

(d) In the second trip, when his wife returned from village Kanphodi, the accused went and met her at the S.T. Stand and informed her that he had already sent the deceased daughters to village Kanphodi by a private jeep.

(e) When the accused came back to his house with the wife in the night, he asked her not to cook as the three daughters were away. He woke up in the midnight and realizing his disturbances, the wife asked him the reasons for the same. He disclosed for the first time, that he had done away with the two daughters who were in his company and that too by strangulating them with the mosquito net. He also disclosed that the dead bodies of the deceased daughters were kept in each trunk in the house.

(f) When the wife raised alarm learning the shocking disclosure, the accused fled away and he was missing till he was taken in custody on the next day at about 11 a.m. from the vicinity of riverlet near the village.

(g) The deceased Shahnaz was around 6 years old and her dead body could not be accommodated in the trunk in the normal circumstances. The accused had virtually folded her dead body at the knees and the waist.

(h) The hut of the accused was surrounded by residential houses and no neighbours had ever suspected that any cries or shouts were heard from the house of the accused. This indicated that he had strangulated them either while they were asleep after their dinner or he had killed the elder one first, so that there could be no noise alerting the neighbours. The medical evidence by way of post mortem report indicated that some digested food was seen in the viscera.

(i) The wife before the trial Court specifically stated that the accused was unhappy on the count that she was giving birth to daughters only and he did not have a son.

(j) The wife had stated that he was not of unsound mind on 25-5-2000 and DW 1 had opined "it is possible that a person killing his own daughters in normal state of mind may get into depression due to his own acts."

9. Shri. Kazi, learned Advocate for the accused/appellant, submitted that the daughters were of minor age and there was no reason for the accused to kill them as his worry of getting them married was not an immediate circumstance and, therefore, the contention of the wife that the accused was unhappy to have four daughters could not be relied upon. Be that as it may, the fact remains that the accused planned the preparations for committing the crime by ensuring that his wife would be away from the house for a considerable long period on the date of incident; that he would be alone with the deceased daughters in the house and the eldest daughter who was capable of raising alarm or resisting any harm being caused either to her or to her sister, was sought to be kept away, though she was brought back by the wife. His explanation given to the wife at the first instance, on her return from village Kanphodi at about 10 p.m., that he had sent the two deceased daughters to village Kanphodi by a private jeep, was a total lie. A person in mentally unsound condition would not say so. It was not a case where he had just dropped something on the head of the daughters or caused them one single assault and killed them. Such a circumstance would probably support that in a disturbed mental unsound conditions the accused acted. Such is not the case. He disclosed to his wife about his crime in the midnight when he could not sleep and obviously, his own act was not permitting him to have sleep. This disturbed state of mind is a clear sign to show that the accused was feeling terribly guilty of having committed such a heinous and gruesome murder of his two daughters and such mental condition by way of after effects would not be gone through by a person who was mentally unsound when he had committed the crime. On his disclosure, when the wife raised an alarm, he fled away. This is another sign which is generally absent in the case of a mentally unsound person. As per the medical opinion given by Dr. Netto Stainly (DW 1), his conditions on 23-6-2000 could be emanated from the fact and the realization that he had committed gruesome murder of his two daughters.

The trial Court has rightly considered all these circumstances and held that the plea of insanity or mental unsoundness, as set out under Section 84 of I.P.C., was not available to the accused and he could not be given the benefit of such an explanation. The trial Court noted that there was no evidence to hold that he had committed the crime under mentally unsound conditions and, on the other hand, he had well planned in the execution of the crime. The depositions of other witnesses have not been considered by us for the simple reasons that the accused had pleaded the protection of Section 84 of I.P.C. and it was not disputed that his daughters met homicidal death and their dead bodies were found in two different trunks kept in the hut/ house. The view taken by the trial Court is supported by well reasoned analysis of the evidence including the medical evidence and, therefore, the order of conviction and sentence, as recorded and impugned in this appeal requires to be confirmed.

10. In the result, the appeal is hereby dismissed. The order of conviction and sentence passed by the learned IInd Additional Sessions Judge, Jalna, on 15-4-2000, in Sessions Case No.4 of 2001, is hereby confirmed. The accused has been in jail from 26/5/2000 and, therefore, he would be entitled for set off under Section 428 of Cr.P.C.

11. The appointed Advocate's professional fees is quantified at Rs.1,000/- (Rupees one thousand only).

Appeal dismissed.