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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.837 OF 2003
Ms. Leena Balkrishna Nair, )
Yerawada Central Prison )
(Female), Pune - 411 006. ) ... Appellant
Versus
The State of Maharashtra. ... Respondent
Ms. Latika Newarekar, appointed advocate for the
appellant.
Mr. H.J. Dedhia, A.P.P. for the State.
CORAM: MRS. RANJANA DESAI &
MRS. V.K. TAHILRAMANI, JJ.
DATE ON WHICH THE ORDER IS
RESERVED : 12TH APRIL, 2010.
DATE ON WHICH THE ORDER IS
PRONOUNCED: 13TH APRIL, 2010.
JUDGMENT :- (Per Smt. Ranjana Desai, J.)
1. The appellant was tried by the Court of Sessions for
Greater Bombay in Sessions Case No.971 of 2000 for
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offence punishable under Section 302 of the Indian Penal
Code (for short, “the IPC”). By impugned judgment and
order dated 5/7/2002, the appellant was convicted for
offence punishable under Section 302 and sentenced to
suffer imprisonment for life and to pay a fine of Rs.300/-,
in default, to suffer rigorous imprisonment for one month.
Being aggrieved by the said judgment and order, the
appellant has preferred the present appeal.
2. It is necessary to give the gist of the facts. The
appellant was residing at Room No.172, Plot No.5,
Nagababa Nagar, Vashinaka, Chembur along with her
aunt DW-1 Ramani Subhash Gaikwad, deceased Aparna
and PW-1 Radhakrishnan Balkrishnan, who is the brother
of the appellant. According to PW-1 Radhakrishnan, on
29/3/2002, while he was in the grocery shop of Bhimrao
Kamble at about 7.00 p.m., his neighbour Sunita Chavan
came to the shop and informed him that she heard a
sound of throwing of stone from his room. He went to his
room and knocked the door for 2-3 times. Since nobody
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gave any response, he pushed open the door of the room.
He noticed the deceased, the daughter of his aunt DW-1
Ramani, lying in a pool of blood inside the room. He
noticed that the appellant was sitting on the cot. Nobody
else was present there.
3. PW-8 PSI Chandrakant Patil, the Investigating Officer,
who was attached to RCF Police Station, has stated in his
evidence that he received telephone message at about
5.45 p.m. that one minor girl was murdered at Nagababa
Nagar, Vashinaka, Chembur. On receipt of this
information, he, PW-9 PI Vijay Meru and his staff reached
the scene of offence. He found the dead body of minor
girl lying in Room No.172. Statement of PW-1
Radhakrishnan came to be recorded. It was treated as FIR
(Ex-8). On the basis of the said FIR, investigation was
started. PW-7 ASI Vithoba Jadhav, who had received a
wireless message on 20/3/2000 at about 5.30 p.m.
reached the scene of offence. He took over the custody of
the appellant, who was present there. After completion of
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investigation, the appellant came to be charged as
aforesaid.
4. The defence of the appellant was one of total denial.
The appellant denied the prosecution case and set up the
case of insanity. In support of her case, the appellant
examined DW-1 Ramani Gaikwad. Learned Sessions
Judge accepted the prosecution version. He came to a
conclusion that the prosecution had proved its case
beyond reasonable doubt. He also came to the conclusion
that the appellant had not been able to probabilise her
evidence that she was of unsound mind at the time of
commission of offence. In the circumstances, he
convicted the appellant as above and, hence, this appeal.
5. We have heard Ms. Newarekar, learned counsel
appearing for the appellant and Mr. Dedhia, learned A.P.P.
appearing for the State. With the assistance of learned
counsel, we have gone through the record of the case.
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6. Learned counsel for the appellant submitted that
learned Sessions Judge fell into a grave error in convicting
the appellant. Learned counsel submitted that the
evidence on record, particularly the evidence of DW-1
Ramani, completely establishes the defence of insanity
and, therefore, in view of Section 84 of the IPC, the
appellant ought to have been acquitted. Learned A.P.P.
on the other hand, submitted that no interference is
necessary with the impugned order.
7. There can be no dispute that the death of Aparna
was homicidal. PW-6 Dr. Vithal Vihurkar did the
postmortem on the deceased. He has proved the
postmortem notes (Ex-17). The postmortem notes indicate
that the deceased had inter alia suffered fracture of skull.
The cause of death is stated in the postmortem notes as
“Head injury and Brain Hemorrhage”. We have already
given the gist of the evidence of PW-1 Radhakrishnan. His
deposition makes it evident that on 29/3/2000 body of the
deceased was found lying in his room situated at
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Nagababa Nagar, Vashinaka, Chembur, in an injured
condition in a pool of blood. His evidence also establishes
that the appellant was sitting on the cot in the room and
nobody else was present inside the room. In his cross-
examination, the defence has not been able to dislodge
the above version. PW-2 Chhaya Hamidani is the pancha
to the scene of offence panchanama (Ex-10). She has
proved the said panchanama. The panchanama indicates
that there was one blood stained grinding stone lying by
the side of the deceased. PW-3 is Sunita Chavan. She is
a neighbour of PW-1 Radhakrishnan. According to her, on
29/3/2000, at about 6.30 p.m., she heard a sound of
throwing of a stone from the room of the appellant. PW-1
Radhakrishnan came there. The door of his room was
opened. According to this witness, the deceased was
lying in a pool of blood on the ground and the appellant
was sitting on a cot near her. PW-4 is Gangubai, another
neighbour of PW-1 Radhakrishnan. She has given similar
evidence. No dent is made in her cross-examination by
the defence. PW-7 ASI Vithoba Jadhav and PW-9 PI Vijay
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Meru have given the details of investigation. A careful
consideration of the evidence led by the prosecution
clearly establishes that the appellant threw the stone on
the deceased and killed her.
8. In support of her defence, the appellant has
examined DW-1 Ramani, her aunt. DW-1 Ramani has
stated that the deceased was her daughter. She had
suffered a serious leg injury. She was unable to walk and,
therefore, she had stopped attending the school. DW-1
Ramani has further stated that six months prior to March,
2000, the appellant had a feeling that somebody comes
and assaults her. She was inclined towards committing
suicide. Few days prior to March, 2000, she had run away
from the house. DW-1 Ramani had shown the appellant to
a local doctor. The local doctor had advised her to consult
a specialist but she had no money for such consultation.
DW-1 Ramani has further stated that sometimes the
appellant used to respond properly. She used to sit by
keeping her hands over her ears for long time. At such
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moment, she never used to talk to anybody and she never
used to answer anyone’s questions.
9. The evidence of the defence witness reflects the
appellant’s plea of insanity. Learned Sessions Judge has
rejected the plea of insanity. He has observed that the
defence has failed to prove that on the date of incident,
the appellant was suffering from insanity and, therefore,
the benefit of Section 84 of the IPC cannot be given to
her. Learned Judge has observed that PW-1
Radhakrishnan, the brother of the appellant has also not
given evidence of ill-health of the appellant and the
evidence of DW-1 Ramani is not sufficient to prove that
the appellant was suffering from unsoundness of mind.
10. Since we have come to a conclusion that the
evidence establishes that the appellant killed the
deceased, we now need to only examine whether the
benefit of Section 84 of the IPC can be given to the
appellant. The question is whether she has proved the
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defence of insanity and learned Judge has erred in
rejecting it.
11. Section 84 of the IPC falls in Chapter IV of the IPC
which contains General Exceptions. It excepts certain
acts done by certain persons under certain set of
circumstances from the penal provisions. Section 84
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 ofdoing it, by reason of unsoundness of
mind, is incapable of knowing thenature of the act, or that he is doing
what is either wrong or contrary to law.”
12. Section 299 of the IPC defines culpable homicide. It
reads thus :
“299. Culpable homicide. –
Whoever causes death by doing an act
with the intention of causing death, or
with the intention of causing such bodily
injury as is likely to cause death, or with
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the knowledge that he is likely by such
act to cause death, commits the offence
of culpable homicide.”
13. Section 299 of the IPC states that for an act to be
culpable homicide, there has to be an intention of causing
death or the act should be accompanied by an intention of
causing such bodily injury as is likely to cause death, or it
should be done with the knowledge that such act is likely
to cause death. As per Section 84 of the IPC, if it is
established that by reason of unsoundness of mind, the
accused is incapable of knowing the nature of the act
committed by him which is an offence, it cannot be
termed as an offence qua him. Underlying principle of
this section is that the act contemplated therein lacks
basic ingredient of an offence which is mens rea or
criminal intention.
14. The burden of proving the existence of
circumstances bringing the case within the purview of
Section 84 of the IPC lies upon the accused under Section
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105 of the Indian Evidence Act. Illustration (a) to Section
105 of the Evidence Act reads as under :
“(a) A, accused of murder alleges that,
by reason of unsoundness of mind, hedid not know the nature of the act,
The burden of proof is on A.”
Thus the burden of proving insanity at the time
when the offence was committed lies on the accused who
pleads the defence of insanity.
15. In Dahyabhai Chhaganbhai Thakkar v. State
of Gujarat, AIR 1964 SC 1563, the Supreme Court
considered the relevant aspects of the law of the plea of
insanity. The Supreme Court observed that it is the
fundamental principle of criminal jurisprudence that an
accused is presumed to be innocent and, therefore, the
burden lies on the prosecution to prove the guilt of the
accused beyond reasonable doubt. The prosecution
has to prove beyond reasonable doubt that the accused
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caused death with the requisite intention of causing
death described in Section 299 of the IPC. This general
burden never shifts and it always rests on the
prosecution. The Supreme Court further observed that as
per Section 105 of the Evidence Act, the burden of
proving the existence of circumstances bringing the case
within any of the General Exceptions in the IPC 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 the accused. The Supreme Court further observed
that the accused will have to rebut the presumption that
such circumstances did not exist, by placing material
before the court sufficient to make it consider the
existence of the said circumstances so probable that
a prudent man would act upon them. The Supreme Court
further observed that if the evidence so placed may not
be sufficient to discharge the burden under Section 105
of the Evidence Act, but it may raise a reasonable doubt in
the mind of a judge as regards one or other of the
necessary ingredients of the offence itself and if the
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judge has such reasonable doubt, he has to acquit the
accused. The relevant paragraph of the judgment of the
Supreme Court may be quoted :
“(7) 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 beyondreasonable doubt that the accused had
committed ig the offence with the
requisite mens rea; and the burden of
proving that always rests on the
prosecution from the beginning to theend of the trial. (2) There is a
rebuttable presumption that the
accused was not insane, when he
committed the crime, in the sense laiddown by S.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 rests
upon a party to civil proceedings. (3)
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 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
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of proof resting on the prosecution was
not discharged.”
In the same judgment, the Supreme Court has held
that whether the accused was in such a state of mind as
to be entitled to the benefit of Section 84 of the IPC can
only be established from the circumstances which
preceded, attended and followed the crime.
16. As directed by us, learned A.P.P. has tendered the
medical record of the appellant in this court. The case
papers of the Thane Mental Hospital indicate that the
appellant was under treatment for mental illness or
insanity. It is noted in the medical papers that her
behaviour was abnormal; she gets excited and engages
herself in irrelevant talk. It is stated that she has auditory
hallucinations and has suspicion about neighbours. There
is also Reception Order dated 19/5/2000 passed under
Section 5 of the Indian Lunancy Act IV of 1912, by the
Additional Chief Metropolitan Magistrate, 11th Court, Kurla,
Mumbai, which reads thus :
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“RECEPTION ORDER
U/sec. 5 of the Indian Lunancy Act IV of 1912)
I, the under-signed Shri D.R. Bhosale, Addl.
Chief Metropolitan Magistrate, 11th Court, Kurla,
Mumbai, upon reading report submitted by the
Superintendent, Mumbai Central Prison,
Mumbai, supported by medical opinions and the
behaviour and conduct of the accused/mentally
sick was also observed by the Judicial Officer,
whenever she was produced for the purpose of
the remand. The report appears to be well
founded. Therefore, it is accepted/allowed. The
Jail Authority is hereby permitted to lodge the
accused/mentally sick in Thane Mental Hospital
for treatment.
Sd/-
D.R. Bhosale,
Addl. Chief Metropolitan Magistrate
11th Court, Kurla, Mumbai.
Mumbai,
19.5.2000.”
17. It is pursuant to this order, that the appellant was
transferred to Thane Mental Hospital for treatment. It
appears that learned Sessions Judge had sought opinion
from the Superintendent of Institute of Mental Health,
Thane as to whether the appellant is fit for discharge and
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trial and, on 19/9/2000, a certificate was issued by the
Superintendent stating that she was fit for discharge and
trial. The question is whether on the basis of this
certificate, we could come to a conclusion that when the
appellant committed the offence, she was mentally fit
and, could know the consequences of her action. The
question further is whether we can conclude that she had
intention to murder the deceased.
18. We are unable to hold that the appellant had
intention to murder the deceased. Her brother PW-1
Radhakrishnan has stated that after the incident in
question, when he entered the room, he found the
deceased lying in a pool of blood and the appellant was
sitting on the cot. He has further stated that she was
murmuring. The fact that after committing the offence,
the appellant continued to sit and murmur is an indication
that all was not well with her mental condition. The
normal reaction of any accused in his senses would be to
run away. It is true as held by the Supreme Court in
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Sherolli Wali Mohammed v. The State of
Maharashtra (1973) 4 SCC 79 that mere fact that the
motive has not been proved or that the accused made no
attempt to run away would not by itself indicate that the
accused was insane. But that would be one of the telltale
circumstances which would go to establish insanity. In
the cross-examination, PW-1 Radhakrishnan has stated
that the appellant used to talk to herself even prior to the
incident; she used to eat less, she used to remain sick and
she was being treated in the Shatabdi Hospital six to
seven months prior to the incident.
19. DW-1 Ramani, the aunt of the appellant and the
mother of the deceased has stated that the appellant
used to feel that somebody would come and assault her
and, she was inclined towards committing suicide. She
has further stated that a few days prior to March, 2000,
she had run away from the house. According to her, she
had shown the appellant to the local doctor and he had
advised her to contact a specialist for treatment of the
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appellant. DW-1 Ramani has also stated that the
appellant did not respond properly and, at times, she used
to sit by keeping her hands over her ears for long time
and at that time, she never used to talk to anybody and
never used to answer any question. The fact that the
mother of the deceased has gone on record to say that
the appellant was ill and was getting hallucinations is
important and is a pointer to the appellant’s insanity. It
must be remembered that the appellant had killed her
daughter. Unless, it is true, DW-1 Ramani would never
have deposed about the mental condition of the appellant
suggestive of unsoundness of mind. It is pertinent to note
that the incident in question took place on 29/3/2000 and
the reception order was passed by the Additional Chief
Metropolitan Magistrate on 19/5/2000 within 50 days from
the date of incident. Certificate issued by the
Superintendent of Institute of Mental Health dated
19/9/2000 to the effect that she was fit for trial may be
the result of the treatment given to her in the Thane
Mental Hospital. But from that certificate, it cannot be
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concluded that the appellant was not insane when she
committed the crime. From the evidence of PW-1
Radhakrishnan and DW-1 Ramani, we have no hesitation
in further concluding that on the date of incident, the
appellant was mentally unsound. Her behaviour
establishes this fact beyond doubt. The prosecution has
established circumstances which preceded, attended and
followed the crime.
ig It must be remembered that the
accused does not have to conclusively prove the defence
of insanity. If the evidence adduced by the prosecution
and by the defence raises a reasonable doubt in the mind
of the court that the accused might have been insane
when she committed the offence, the accused is entitled
to the benefit of Section 84 of the IPC. We feel that
learned Judge overlooked vital evidence. He wrongly
convicted the appellant. The appellant will have to be
therefore acquitted.
20. On 1/4/2010, during the hearing of this appeal, we
were informed by learned counsel for the appellant that
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the appellant is kept in Yerwada Jail Hospital, but the
Yerwada Jail Hospital has made a proposal to the
Government that considering the type of mental illness
from which the appellant is suffering, she should be
shifted to the Mental Hospital Yerwada for further
management. On that proposal dated 30/3/2010, the
State Government had not taken any action. We noted
our unhappiness over the State Government’s lethargy
and directed that the appellant be shifted to the Regional
Mental Hospital, Yerwada and proper treatment be given
to her. We are informed that accordingly, the appellant
was shifted to the hospital and she is being given
treatment in that hospital.
21. Today, we have been shown G.R. dated 8/4/2010
whereby the appellant is transferred from Yerwada
Central Prison, Pune to Regional Mental Hospital, Yerwada,
Pune. The G.R. is accompanied by a warrant issued under
Section 30(1) of the Prisoners Act, 1900 for removal of the
appellant to the Regional Mental Hospital. The warrant
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states that the State Government has ordered that the
appellant shall be kept under medical care and treatment
in the said hospital for the remainder of the term for
which she has been sentenced to be imprisoned and if she
recovers before expiration of the term, she should be
remanded to prison under Section 30(2) of the Prisoners
Act, 1900. This G.R. and the warrant proceed on the
assumption that
the conviction of the appellant is
confirmed. As we have indicated hereinabove, the
appellant deserves to be acquitted. The G.R. dated
8/4/2010 and the accompanying warrant therefore, need
to be revoked.
22. The question is after acquittal where should the
appellant be directed to be kept. Section 335 of the
Code of Criminal Procedure 1973 (for short, “the
Code”) makes provision for detention of persons
acquitted on the ground of unsoundness of mind. It
reads thus :
::: Downloaded on - 09/06/2013 15:50:36 ::: AJN 22 "335. Person acquitted on such ground to be detained in safe custody. - Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or
which the trial has been held, shall, if
such act would, but for the incapacity
found, have constituted an offence, –
(a) order such person to be
detained in safe custody in such place
and manner as the Magistrate or Court
thinks fit; or
(b) order such person to be
delivered to any relative or friend of
such person.
(2) No order for the detention of
the accused in a lunatic asylum shall be
made under cluase (a) of sub-section (1)
otherwise than in accordance with such
rules as the State Government may
have made under the Indian Lunacy Act,
1912 (4 of 1912).
(3) No order for the delivery of
the accused to a relative or friend shall
be made under clause (b) of sub-section
(1), except upon the application of such
relative or friend and on his giving
security to the satisfaction of the
Magistrate or Court that the person
delivered shall –
(a) be properly taken care of and
prevented from doing injury to himself
or to any other person;
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inspection of such officer, and at such
times and places, as the State
Government may direct.
(4) The Magistrate or Court shall
report to the State Government the
action taken under sub-section (1).”
23. It is apparent from the above provision that if a
person, who has committed an offence is acquitted
because when he committed the offence, he was of
unsound mind, care must be taken to see that he is
detained in safe custody because if such person is let
loose in the Society, there is a possibility that he or she
may commit similar offences. Sub-Section (b) of Section
335 states that after acquittal, such person can be
delivered to any relative or friend of such person. The
appellant comes from poor strata of the society. The
appellant’s brother and aunt could not even give her
proper treatment. In such situation, it is not possible for
us to handover her to them. No friend has come forward
to take her custody. For the time being, for better
treatment, we have directed that she be kept in Regional
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Mental Hospital, Yerwada.
24. Section 338 lays down the procedure to be followed
where lunatics are declared fit to be released. The State
Government has a great role to play. It would be,
therefore, necessary for the prison authorities to get the
appellant examined by a competent psychiatrist. Her
current physical and mental state must be ascertained.
The doctor must give his opinion as to whether the
appellant is fit to be released from custody or whether she
needs to be kept in safe custody because she needs
further treatment. We, therefore, direct that the appellant
be got medically examined by a competent psychiatrist
and on the basis of the medical certificate issued by the
doctor, the State of Maharashtra shall take steps as laid
down in Section 338 of the Code. Such a course is
followed by this court in Nivrutti Dhondiba Shinde v.
State of Maharashtra, 1985 Cri.L.J. 449. Hence, we
pass the following order :
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ORDER
25. The impugned judgment and order dated 5/7/2002 is
quashed and set aside. The appellant – Ms. Leena
Balkrishna Nair is acquitted of the charge levelled against
her. The appeal is thus allowed.
26. The State shall revoke G.R. dated 8/4/2010 and
warrant of the same date as they proceed on the
assumption that the appellant is convicted and issue
appropriate G.R., if necessary.
27. However, we direct that the appellant shall be
detained in safe custody either in the Regional Mental
Hospital, Yerwada if she needs further treatment or in
some other appropriate jail or place and the jail
authorities shall submit a report to the State Government
forthwith whether the appellant can be released without
danger of her doing injury to herself or to any other
person and upon receipt of such a report from the jail
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authorities, the State Government shall take appropriate
steps as envisaged under Section 338 of the Code in the
matter of release of the appellant. We also direct that the
office shall send a copy of this judgment to the State
Government under Section 335(4) of the Code. We
further direct that the operative part of this judgment be
sent to the concerned jail authorities immediately.
[MRS. RANJANA DESAI, J.]
[MRS. V.K. TAHILRAMANI, J.]
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