Criminal Appeal No. 886 of 2005

3rd January, 2013

Petitioner Counsel: Dr. YUG MOHIT CHOUDHARY
Respondent Counsel: Mrs. SHILPA GAJARE-DHUMAL

Cases Cited:
Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, (1964) 7 SCR 361 [Para 10]
Shrikant Anandrao Bhosale Vs. State of Maharashtra, 2002 ALL MR (Cri) 2571 (S.C.)=AIR 2002 SC 3399 [Para 11]

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- The Appellant/Original Accused has directed this Appeal against the Judgment and order dated 8th April, 2005, passed by the learned Sessions Judge, Sindhudurg Oras in Sessions Case No. 27 of 2004. By the said Judgment and order, the learned Sessions Judge convicted the Appellant for the offence under Sections 302 and 323 of Indian Penal Code (IPC). For the offence punishable under Section 302, he was sentenced to suffer life imprisonment and fine of Rs.5,000/- and for the offence punishable under Section 323, he was sentenced to suffer imprisonment for one month and to pay fine of Rs.1,000/-, in default S.I. for 15 days.

2. The prosecution case, briefly stated, is as under:

The Appellant was married to deceased Ravina in the year 1995. He was residing with Ravina, his two children and his father Govind in village Zolambe, District Sindhudurg-Oras. His aunt P.W.6 Taramati was residing with her son P.W.1 Gurudas and others in the same house, but they were residing separately. The incident occurred on 4th February, 2004 at about 12.30 p.m. At about 12.15 noon Ravina served food to the Appellant and her father-in-law Govind. Thereafter, Ravina came and stood in the court-yard. She had a talk with P.W.6 Taramati. They had talk about cooking of food and taking meals. At that time, Appellant came out and dragged Ravina inside the house and asked her what talk she had with his aunt Taramati. The Appellant asked Ravina to seek pardon before God. Then the Appellant asked her to come to Tulsivrindavan outside the house and to prostrate before Tulsivrindavan. While she was doing so, Appellant beat her with a wooden log. Thereafter the Appellant took out a wooden plank (reep) and he gave blows to Ravina on her head. When Govind, father of the Appellant intervened, the Appellant gave a blow on the hand of his father Govind with a wooden plank. His father sustained injury. Ravina sustained bleeding injury on the head and died on the spot. P.W.1 Gurudas, son of P.W.6 Taramati returned home at about 12.30 noon. He saw Ravina lying in the pool of blood and Govind, father of the Appellant was sitting and crying. The Appellant was standing there. Then, P.W.1 Gurudas went to the house of P.W.7 Sukhaji Gawas who was the Deputy Sarpanch. He brought P.W.7 Sukhaji Gawas, Deputy Sarpanch as well as Police Patil P.W.2 Vilas Gawas, to the house of the Appellant. At that time the Appellant was still standing there. Then, P.W.1 Gurudas lodged First Information Report (FIR). Thereafter, investigation commenced. The dead body of Ravina was sent for post-mortem. P.W.3 Dr. Lavate performed the post mortem on the dead body of Ravina. He found the following external injuries on the dead body of Ravina.

1. C.L.W. over right parieto-temporal region 3 cm. above right ear measuring 10 inches X 4 inches X 4 inches fracture of skull.

2. Abrasion over right elbow on medial side 5 x 4 cm.

3. Abrasion over left elbow tip 4 x 3 cm.

4. Abrasion over medial side of right knee x X 2 c.m.

On internal examination, P.W.3 Dr. Lavate found fracture of right temporo parietal region of skull, 10 inches X 4 inches. So, according to P.W.3 Dr. Lavate, the cause of death was due to haemorrhage and cerebral damage because of fracture of skull in right parieto-temporal region. According to Dr. Lavate, injury No.1 is sufficient in the ordinary course of nature to cause death. After completion of investigation, charge-sheet came to be filed.

3. Charge came to be framed against the Appellant under Sections 302 and 323 of Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. His further defence is that at the time of the incident he was suffering from an attack of insanity. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph No.1 above, hence, this Appeal.

4. We have heard Dr. Yug Mohit Choudhary, the learned Advocate for the Appellant and the learned A.P.P. for the Respondent - State. We have carefully perused the Judgment and order as well as the evidence in this case and also considered the defence of the Appellant. After carefully considering the matter, we are of the opinion that the learned Sessions Judge has rightly come to the conclusion that the Appellant has caused the death of his wife Ravina by assaulting her with a wooden plank.

5. The conviction of the Appellant is mainly based on the evidence of P.W.6 Taramati who is an eye-witness in the present case. Taramati has stated that the incident occurred on 4th February, 2004 at about 12.30 p.m. At about 12.15 noon Ravina served food to the Appellant and her father-in-law Govind. Thereafter, Ravina came and stood in the court-yard. She had a talk with P.W. 6 Taramati. They had talk about cooking of food and taking the meals. At that time, the Appellant came out and dragged Ravina inside the house and asked her what talk she had with his aunt Taramati. The Appellant had asked Ravina to seek pardon before God. Then the Appellant asked Ravina to come to Tulsivrindavan and to prostrate before Tulsivrindavan. While she was doing so, the Appellant took out a wooden plank (reep) and he gave blows to Ravina on her head. Govind, father of the Appellant intervened, the Appellant gave a blow on the hand of his father Govind with a wooden plank. His father sustained injury. The evidence of P.W.6 Taramati is corroborated to some extent by the evidence of P.W.1 Gurudas. Gurudas has stated that when he returned home at about 12.30 noon, he saw Ravina lying in a pool of blood and Govind, father of the Appellant was crying. At that time the Appellant was found standing there.

6. Beside the evidence of P.W. 6 Taramati, there is a evidence of P.W.7 Sukhaji Gawas, the Deputy Sarpanch of the village. This witness has stated that at about 12.30 noon, P.W.1 Gurudas came to his house and told him that the Appellant had killed his wife. Hence, he went to the house of the Appellant. He saw dead body of Ravina lying in a pool of blood near Tulsivrindavan. He enquired with the Appellant what he has done. Whereupon, the Appellant told him that he asked his wife to prostrate before God but she was not obeying him and hence why he should have her. Thus, the evidence of P.W.6 Taramati, P.W. 2 Gurudas and P.W.7 Sukhaji Gawas clearly shows that it was the Appellant who caused death of his wife Ravina.

7. Advocate Dr. Choudhary submitted that the Appellant cannot be held liable under Section 302 of Indian Penal Code and he is entitled to get benefit of Section 84 of the Indian Penal Code. To support his submission, he placed reliance on the evidence of P.W.2 Vilas Gawas, Police Patil of the village and the evidence of D.W.1 Dr. Malave. Dr. Choudhary submitted that the accused has been under the medical treatment for his insanity since the year 1997/1998. And even after the incident he was under treatment for his insanity for which he had been admitted to the hospital. Dr. Choudhary placed reliance on the evidence of P.W.2 Vilas Gawas, Police Patil of the village, wherein he has admitted that once in 1997 or 1998, the accused was sent to Ratnagiri for treatment of his mental illness. Thereafter the accused was taking treatment from one person from Banda. Dr. Choudhary has also placed reliance on the evidence of D.W. No.1 Dr. Malave. This doctor was the superintendent of Regional Mental Hospital at Ratnagiri-Oras. D.W. 1 Dr. Malave has stated as per the record of the hospital which were produced by her, the Appellant was admitted as non-criminal patient in their hospital on 28th December, 1999. At that time he was given shock treatment i.e. Electro Convulsion Treatment (ECT) and medicines and he was discharged on 12th February, 2000, which is shows that in the year 1999-2000, the Appellant was admitted in the mental hospital for treatment for about 1 and ½ month. When the Appellant was discharged, he was advised to continue the treatment. Thereafter, D.W.1 Dr. Malave has stated that the Appellant was admitted in their hospital on 9th April, 2004. On 1st April, 2004 the Appellant had been brought to the hospital but he was treated as an outdoor patient. The Appellant was admitted in their hospital from 9th April, 2004 till 23rd July, 2004. When they examined the Appellant, they found he was mentally ill. The Appellant was given anti-psychotic medicines. They found that he was uncooperative and he expressed delusions. The doctor came to the conclusion that the Appellant was suffering from schizophrenia. In June 2004, the Appellant was produced before the standing committee for discharge of schizophrenia patient. The committee consisted of seven persons including Magistrate, Jail Superintendent and one social worker. However, the committee had given its opinion that the Appellant is not fit for discharge. Dr. Malave has further stated that on 16th April, 2004, shock treatment i.e. ECT was given to the Appellant. Medicines were also continued. From June end, there was some improvement. The patient was discharged and he was advised to continue treatment and follow up. D.W.1 Dr. Malave has stated that if the medicines are stopped, there is possibility of relapse. After relapse, the patient may be violent. In schizophrenia, relapse and remissions is known. The doctor has admitted that whenever such patient acts during relapse, the patient does not know what he is doing. She has further admitted that in the year 2004, the patient i.e. the Appellant came to them during the relapse state. Thus, the evidence of Police Patil P.W.2 Vilas Gawas shows that prior to the incident also the Appellant was under treatment for his mental illness. D.W.1 Dr. Malave has also stated in her evidence the fact that the Appellant was under medical treatment for his mental illness prior to the incident. His mental illness was to such an extent that in December 1998 he had been admitted to the mental hospital and he remained there for about 1 and ½ month. The severity of the mental illness was such that the Appellant had to be given shock treatment. The evidence of this witness shows that shock treatment was given to the Appellant prior to the incident i.e. in January 2000 and after the incident i.e. from June 2004. Thus both before the incident and after the incident, the Appellant was under treatment for his mental illness. This shows that in all probability at the time of the incident also he was suffering from an attack of insanity. It is pertinent to note that it is revealed from the evidence of Dr. Malave that the act during the incident in question took place during a relapse.

8. There is one other aspect which in our opinion ought to be taken into consideration i.e. the conduct of the Appellant immediately after the incident. After the Appellant-accused assaulted his wife he continued standing at the spot. He made no attempt to run away from the spot. The evidence of P.W.1 Gurudas shows that when he returned home and saw Ravina lying in a pool of blood, he went to the house of Deputy Sarpanch. He also brought the Police Patil P.W.2 Vilas Gawas to the spot. When they came back, they found that the Appellant was still standing there. The evidence of P.W.1 Gurudas further shows that the police came at about 4.00 p.m. At that time also the Appellant-accused was standing at the spot. P.W. 1 Gurudas has further stated that panchanama was going on till 9.00 p.m., during all this time the accused was standing near the door of his house. It is to be noted that the incident took place at about 12.30 p.m. however, till 9.30 p.m. the Appellant continued to stand near the door of his house, without making any attempt to run away. This conduct also does not appear to be that of a normal person.

9. The burden to prove that the accused was of unsound mind and as a result thereof he was incapable of knowing the nature and consequences of his acts is on the accused. Section 84, I.P.C. is one of the provision in Chapter IV I.P.C. which deals with "General Exceptions". This section provides 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 knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105 of the Indian Evidence Act. Under the said section, the Court shall presume absence of such circumstances. (Illustration (a) to Section 105 is as follows) :

"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

The burden of proof is on A."

The question whether the appellant has proved the existence of circumstances bringing his case within the purview of Section 84 will have to be examined from the totality of circumstances. The unsoundness of mind as a result whereof one is incapable of knowing nature and consequences of the act is a state of mind of a person which, ordinarily can be inferred from the circumstances.

10. At this stage, it is necessary to notice the nature of the burden that is required to be discharged by the accused to get benefit of Section 84, Indian Penal Code. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat [(1964) 7 SCR 361], the Supreme Court has held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. The burden of proof on the accused to prove insanity is no higher than that which rests upon a party to civil proceedings which, in other words, means preponderance of probabilities.

11. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions : (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not sane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code; the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings. (3) Even if the accused is not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof, resting on the prosecution was not discharged. Similar view was taken by the Supreme Court in the case of Shrikant Anandrao Bhosale .vs. State of Maharashtra reported in AIR 2002 SC 3399 : [2002 ALL MR (Cri) 2571 (S.C.)].

12. The circumstances that stand proved in this case in relation to the defence of the appellant of lunacy are that :

i. the appellant had a history of psychiatric illness,

ii. he was admitted in the Government Mental Hospital for more than 5 months,

iii. his mental illness was to such an extent that he was given 11 electric shocks in addition to other treatment,

iv. after killing his wife, he made no attempt to hide or run away but he stood there at the spot from 12.30 noon till 9.30 p.m.

13. We have already adverted to the evidence of P.W.2 Police Patil Vilas Gawas, who has stated that prior to the incident the Appellant was taking treatment in the mental hospital at Ratnagiri. We have also adverted to the evidence of Dr. Malave. The evidence of Dr. Malave shows that prior to the incident in the year 1999 - 2000 as well as after the incident in the year 2004 the Appellant was under medical treatment for his insanity. His insanity was to such an extent that it was not possible to cure him by giving medicines but he had to be given shock treatment. We would also like to reiterate the conduct of the Appellant. The evidence of P.W.1 Gurudas shows that the incident occurred at about 12.30 p.m. and from this time till 9.00 p.m. the Appellant continued to stand in the door of his house. This shows that the Appellant made no attempt to run away or to hide. He continued to stand calmly near the door of his house. This conduct is not the normal conduct of an accused person. An accused person would run away from the scene of crime or he would at least make an attempt to run away. But, in this case, the Appellant continued to stand in the house from 12.30 p.m. to 9-9.30 p.m. This also shows that the mental condition of the Appellant-accused was not stable at the time of the incident.

14. From the entire evidence on record, it does appear that even at the time of incident, the Appellant was suffering from an attack of insanity and during such attack, he assaulted his wife Ravina. The fact that he continued to stand near the door of his house and did not make any attempt to run away also shows that he did not know the nature and consequences of his act and that it was wrong and contrary to law, otherwise, he would have made every attempt to run away from the spot.

15. On careful scrutiny of the evidence on record, we are of the opinion that the Appellant had acted in a sudden fit of insanity. When the previous insanity of the Appellant is proved, the presumption of insanity at the time of commission of the act would be definitely weakened to a certain extent. We, therefore, do not hesitate to accept the defence of the Appellant that at the time of committing the crime he was incapable of knowing the nature and consequences of his act or that it was wrong and contrary to law, therefore, his case is covered by general exception to Section 84 of the Indian Penal Code. In this view of the matter, we are of the opinion that the case of the Appellant fall under Section 84 of the Indian Penal Code and he deserves to be given benefit of the same.

16. In the result, we pass the following order:

ORDER

i. Appeal is allowed.

ii. The conviction and sentence of the Appellant under Sections 302 and 323 of the Indian Penal Code is set aside. The Appellant is acquitted of the said charges. He be released forthwith if not required in any other case.

iii. Fine amount if any paid be refunded.

iv. Writ of the order be expedited.

v. The order be communicated to the Appellant - original accused who is in jail.

Appeal allowed.