JUDGMENT
A.S. Bagga, J.
1. This appeal is preferred against the Judgment and Order dated 26-6-1996 passed by Sessions Judge, Ahmednagar in Sessions Case No. 376 of 1995 thereby convicting the appellant for the offence punishable Under. Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life.
2. Prosecution story, in brief, is as follows :
The appellant happens to be the son of Manik Laxman Surose. Laxman Surose has two brothers namely; Jagannath Surose (PW 4) and Ajinath Surose. They reside at Rawalgaon with their families in the houses which are close to each other with small open land in front of their houses. Deceased Gunabai the paternal aunt of three brothers resided with one of the brothers namely; Ajinath. There was small shed raised in front of house of Ajinath where deceased Gunabai sometimes used to have her afternoon siesta. It is alleged that on 25-3-1995 in the afternoon, the appellant arrived, entered the house of Ajinath and equipped with axe came out and he dealt two blows on deceased Gunabai who was lying in the shed. He dropped blood-stained axe near the place of occurrence and left. Deceased Gunabai in injured condition was taken to Primary Health Centre, Mirajgaon where doctor Narayan Yeole gave primary medical treatment to Gunabai. He advised that the injured should be taken to Civil Hospital, Ahmednagar. While Gunabai was being taken to Civil Hospital, Ahmednagar, she died on way. Her dead body was brought back to the Primary Health Centre at Mirajgaon where post-mortem was conducted by same Medical Officer i.e. Dr. Narayan Yeola (PW 1). On the information given by Dr. Narayan Yeola, H.C. Suryabhan (PW 6) of Karjat police station arrived at the Primary Health Centre. He went to village Rawalgaon and arrested the appellant at about 4.30 p.m. Jagannath Laxman Surose (PW 4). real uncle of the appellant, lodged report at Exhibit 17 before H.C. Suryabhan Vavhal (PW 6). H.C. Suryabhan Vavhal thereafter prepared occurrence report and the complaint lodged by Jagannath Laxman Surose (PW 4) to Karjat Police Station where upon offence came to be registered. P.I. Balasaheb Khilari (PW 7) conducted inquest panchanama on the body of the deceased Gunabai and completed usual investigation in the matter.
3. The appellant was tried before Sessions Judge, Ahmednagar for the offence of murder of his father’s aunt.
4. Before learned Judge three eye-witnesses were examined namely; Chhaya Balu Surose (PW 3), daughter in law of Jagannath, Jagannath Laxman Surose (PW 4) himself who happens to be real brother of the father of the appellant and Shaubai Laxman Surose (PW 5) – the mother of Jagannath, Manik and Ajinath – 3 brothers i.e. grandmother of the appellant himself. Since the occurrence took place in broad day light in a Chapari in front of house of one of the brothers, the eye-witnesses who came to be examined being natural witnesses and they were appellant’s own relatives, learned trial Judge found their evidence natural and credible. Seeking corroboration from the recovery of blood stained weapon the axe, learned Judge found the appellant guilty and passed the judgment and order which is impugned.
5. We have heard Janab Mustafa Ahmad Momin, learned Counsel for the appellant. He does not question the finding of learned trial Judge about the act of killing by the appellant. Learned Counsel, however, contended that the appellant was lunatic and by reason of unsoundness of mind was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.
6. We have perused the record carefully. On scrutiny of the evidence of eye-witnesses, we find that there is material on record to show that the appellant was not of sound mind. Chhaya Surose (PW 3), in her cross-examination on page No. 95 stated thus :
On my marriage, 1 had learnt that the accused is of unsound mind. About 2-4 days prior to the day of incident, some villagers had made a complaint to the police that the accused is a lunatic. On the day of incident, the accused had ran away to village Kombhali and some persons from Ravalgaon had gone to catch-hold of him.
Jagannath Surose (PW 4) in paragraph 4 of his evidence also admitted that 2-4 days prior to the date of occurrence, villagers of Ravalgaon had complained that the appellant was behaving like mad man and should be taken care of. It was further stated by this witness that the father of the appellant and other villagers had given an application to the police to that effect. This witness with the help of others were making efforts to catch the appellant to handover him to the police. It is also stated that prior to the day of the occurrence, appellant had ran away from village Ravalgaon. Shaubai (PW 5), her evidence, went a step ahead and said that the appellant had dealt axe blow on Gunabai’s head in a fit of lunacy.
It would thus be seen that plea of lunacy was taken during the trial and the eye-witnesses examined by the prosecution stated that the appellant was not of sound mind and further that the report in that connection had been lodged in the police station.
7. We have noticed on perusal of the impugned judgment that learned trial Judge in paragraph No. 11 of his judgment has discussed the plea taken on behalf of the appellant. We further note that soon after the evidence of Shaubai (PW 5) was recorded the accused was sent to Civil Surgeon for observation for 10 days and for submission of his report. On perusal of the impugned judgment, we also find that the appellant was admitted in Regional Mental Hospital to Yerwada on 8-6-1995 i.e. after his arrest on 25-3-1995. On examination of the appellant on 25-5-1995, the appellant was not found to be of sound mind.
8. On perusal of the evidence of the eyewitnesses and the impugned judgment, it would thus be seen that a reasonable doubt is created about soundness of the mind of the appellant. The conduct of the appellant at the time of assaulting this deceased his own father’s aunt in broad day light in front of his own and the house of his uncle and within the sight of his relatives and leaving the blood stained axe on the spot demonstrate abnormality.
9. We are mindful of legal position that the onus of proving circumstances which give the benefit of the exception to accused person lies on him. However, it is apparent from the evidence on record produced by the prosecution itself and the circumstances in which the Act of assault was done by the appellant, reasonable doubt is created in our mind about the sanity of appellant at the time of occurrence. We may usefully refer to the case between Dahyabhai Chhagabhai Thakkar v. State of Gujarat, : It has been stated therein that
The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which precede, attended and followed the crime.
In the case on hand, there is evidence of Jagannath and the sister-in-law of the appellant that the appellant was of unsound mind prior to the date of occurrence. Shaubai (PW 5) has stated in her evidence that the accused was behaving like lunatic and he dealt axe blow on Gunabai’s head in a fit of lunacy. Subsequent to his arrest, he was sent to Regional Mental Hospital, Yerwada on 8-6-1995 as is clear from the observations made by the learned trial Judge in paragraph 11 of his judgment. The appellant was examined by Civil Hospital, Ahmednagar on 25-5-1995 and found him to be suffering from mental disorder. Thus, on scrutiny of record, we find circumstances creating reasonable doubt.” The onus of proving circumstances which gives benefit of the exception to the appellant has been discharged in this case. The appellant is entitled under these circumstances to benefit of doubt. The approach of the learned Judge while dealing with this aspect of the matter has been erroneous. It was brought on record that the Sarpanch of village and Jagannath (PW 4) had gone to the police station and had given in writing that the appellant was behaving like lunatic. It was also a matter of record that the appellant was admitted in Regional Mental Hospital, Yerwada on 8-6-1995 after his arrest. There was a certificate (Exhibit 49) dated 25-5-1995 by Dr. D.B. Mahajan, R.M.O. finding the appellant to be suffering from mental disorder. Learned Judge in our view erred in rejecting the evidence of Jagannath (PW 4) only because no document was placed on record by the defence to show that the reports were given to the police about the unsoundness of the appellant. We find sufficient material on record creating reasonable doubt about the sanity of the appellant at the time of commission of the crime. We therefore, hold that there are circumstances to show that the accused appellant at the time of doing act of assault, by reason of unsoundness of mind was incapable of knowing the nature of the act. He was, therefore, entitled to be acquitted.
10. In the result, we allow the appeal. We set aside the conviction and sentence and acquit the appellant of the offence punishable Under Section 302 of the Indian Penal Code. Since the appellant who is in jail has been found by us to have committed the act which would; but for the incapacity found; have constituted the offence, we direct the delivery of the appellant to any relative or friend of the appellant.
We direct the Sessions Judge, Ahmednagar to pass orders for the delivery of the appellant to a relative or friend upon application of such relative or friend and on his giving security to his satisfaction that the appellant Gulab Manik Surwase shall –
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer and at such times and places as the Government may direct; and
(c) intimate the Government about delivery of the appellant to his relative/or friend as the case may be.