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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 387 of 2006
The State of Maharashtra, ]
through PI, Shrirampur, ]
City Police Station, ] Appellant
Shrirampur, Dist.Ahmednagar ] Ori.complainant
vs
Uttam Nandram Somwanshi, ]
age 47 years, occup. Nil. ]
r/of Northern Branch, Ward ]
No.4,in front of Magar Brick ]
Furneess, Shrirampur, Taluka ] Respondent
Shrirampur, Dist.Ahmednagar ] accused.
------
Shri N.B.Khandare,Public Prosecutor, for appellant.
Shri N.C.Garud,Advocate (appointed) for respondent.
------
Coram: N.V.Dabholkar & P.R.Borkar, JJ.
Judgment reserved on: July 17, 2008.
Judgment pronounced on July 22, 2008
Judgment (Per: Dabholkar, J.)
01. The State feeling aggrieved by the
judgment of acquittal recorded by Additional
Sessions Judge, Shrirampur in Sessions Case No.70
of 2003, has filed this appeal under Section 378
(1) (3) of the Code of Criminal Procedure, 1973.
The Respondent-accused was tried for offences
punishable under Sections 302, 504 of Indian penal
Code and was acquitted at the conclusion of the
trial, on 27.9.2005. Hence, the appeal.
02. The prosecution story can be narrated
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thus;
. The incident in question took place on
30.7.2003 at about 2.30 a.m. This was on the night
between 29th and 30th July 2003, after midnight
hours. The place of incident is at Shrirampur and
in front of the house of the accused. The victim
of the incident Vatchalabai was the wife of the
accused. The prosecution story mainly unfolds from
the deposition of PW-1 Ashok and PW-4 Vaishali, who
are the children of the accused and the deceased.
They were aged 20 and 22 years respectively, at the
time of
recording their evidence in 2005. Thus,
they were aged 18 and 20 at the time of incident
and are the individuals of sufficient understanding
and not child witnesses.
. On 29.7.2003, the accused and brother of
PW-1 Ashok, had been to their workshop. The
deceased, on her way to the temple, visited the
workshop at about 4.30 p.m. At that time, she was
accompanied by daughter Vaishali (PW-4). The
accused was annoyed by this visit and he expressed
his displeasure about the same. There was some
exchange between husband and wife on that count.
At about 7.30 p.m., his other son returned home.
The family had dinner at about 9.30 p.m.,
whereafter the family went to sleep. The accused,
deceased Vatchalabai and PW-1 Ashok were sleeping
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on the platform in front of the house and others
were sleeping inside the house. Even before going
to bed, the accused challenged deceased Vatchalabai
about her visit to the workshop and again there was
a quarrel between the two.
. At about 2.30 a.m., PW-1 Ashok heard the
noise of assault and he removed the chaddar from
his face. He saw the accused assaulting Vatchalabai
with an iron pestle on her head. Ashok shouted and
snatched the pestle. In the meanwhile, other
family members, who were sleeping inside, also came
out. The
mother was seriously injured and head
injury was profusely bleeding. Vatchalabai had
become unconscious. Ravi, other son, arranged one
rickshaw. PW-1 Ashok, Ravindra Borkar, Kailash
Borkar and others took her to Damani Hospital. One
Dattu Magar was asked to give message to brother of
the victim (PW-3 Bhalnath). At Damani hospital,
party was advised to take the injured to German
Hospital. The German Hospital directed the party
to take the injured to Kamgar Hospital. After some
examination and C.T. scan, the patient was shifted
to Loni Hospital. At about 11.00 a.m., doctors
told the relatives of Vatchalabai that, she had
expired.
. On 30.7.2003, at about 3.30 a.m., brother
of PW-3 Bhalnath received a message regarding
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assault on the sister by the accused and that she
was admitted in the hospital. The brother
communicated the details to Bhalnath on telephone
through one Mr. Kale. Bhalnath reached Shrirampur
and followed the same path by which the party had
taken the victim i.e Damani Hospital, German
Hospital, Kamgar Hospital and lastly Pravara
Hospital, Loni. After intimation regarding death
of Vatchalabai, Bhalnath came to Shrirampur and
lodged a report with police station, which set the
investigation into motion.
03.
For proving its case, the prosecution has
examined seven witnesses. PW-1 Ashok and PW-4
Vaishali, who are the children of accused and the
victim, provided direct and best possible evidence.
PW-3 Bhalnath is the brother of the deceased, but
he has no personal knowledge about the incident and
he had joined the party only at Pravara Hospital,
Loni.
. Dr.Kashinath, attached to Pravara
Hospital (PW-5) has produced the case papers of
deceased Vatchalabai, from Pravara Hospital and
PW-6 Dr. Shrikant then attached to Pravara
Hospital, had performed post mortem. The spot
panchanama was drawn in the presence of PW-2 Deepak
and Shri S.R. Rane, Deputy Superintendent of
Police (PW-7), is the Investigating Officer.
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04. The accused, while denying the charge,
has not denied relationship. He has expressed
desire to examine defence witness and has,
accordingly, examined Dr.Mohan Sahatrabuddhe.
Although accused himself did not touch that aspect
during the course of his statement under Section
313 of the Code of Criminal Procedure, 1973, the
defence raised by cross examination of the
witnesses and examination of Dr. Sahatrabuddhe as
defence witness, the accused has claimed benefit of
Section 84 of I.P.C. and it is submitted on his
behalf that
at the time of the incident, he was
incapable of knowing the nature of the act, or that
he was incapable of knowing that what he was doing
was either wrong or contrary to law, due to
unsoundness of mind.
05. On going through the impugned judgment,
it can be said that by relying upon evidence of the
two children (Ashok and Vaishali – PWs 1 and 4) of
the accused and the victim, the learned Judge came
to the conclusion that the act is committed by the
accused. In other words, it is held that the
accused caused head injuries to wife Vatchalabai,
by assaulting with the help of the pestle, which
has resulted into her death. Upon considering the
evidence of defence witness Dr. Sahatrabuddhe and
certain admissions in the evidence of PW-4
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Vaishali, the learned Judge felt that the case of
the respondent-accused was squarely covered by
general exception under Section 84 of the IPC and,
therefore, the accused is acquitted and his
detention in Yerwada Mental Hospital is ordered
till he recovers.
06. Heard respective counsel. Both of them
placed reliance upon reported judgments, in order
to enlighten us as to when the benefit of general
exception under Section 84 of IPC is available and
when it is not. Only thereafter, both the lawyers
referred
to admissions by PW-4 Vaishali and other
material on record, in order to propound respective
case.
. It was submitted by learned Public
Prosecutor that the defence has not discharged onus
of creating a preponderance of probability that “at
the time of doing the act” by unsoundness of mind,
the respondent-accused was incapable of knowing the
nature of his act, or that what he was doing was
unlawful and, therefore, according to learned
Public Prosecutor, the trial court was not
justified in granting benefit of general exception
under Section 84 of the IPC.
. According to learned Defence Counsel, the
defence has brought sufficient material on record,
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demonstrating that the accused was schizophrenic
and thus created a probability of his being a
person of unsound mind at the time of doing the
act, by providing details of his mental state
before and after the incident.
07. AIR 1961 SC 998, State of Madhya Pradesh
vs. Ahmadulla, was relied upon by learned Public
Prosecutor for following observations from
paragraphs 3 and 8 of the judgment.
“.
ig The burden of proof that the
mental condition of the accused was, at
the crucial point of time, such as is
described by S.84 lies on the accused who
claims the benefit of this exemption.”
. The emphasis by learned Public Prosecutor
was on the clause “at the crucial point of time.”.
time.”
In paragraph 8 of the judgment, the learned Public
Prosecutor has placed reliance on the observations
which are borrowed by the Hon’ble Apex Court from
the decision of the Court of Criminal Appeal in
England in Henry Perry 14 Cri App Rep 48. The
observations relied upon read as under:-
“. Every man is presumed to be sane
and to possess a sufficient degree of
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(8)reason to be responsible for his acts
unless the contrary is proved. To
establish insanity it must be clearly
proved that at the time of committing the
act the party is labouring under such
defect of reason as not to know the
nature and quality of the act which he is
committing-that is- the physical nature
and quality as distinguished from the
moral – or, if he does know the nature
and quality of the act he is committing,
that he does not know that he is doing
wrong ……………………………..
There is, however, evidence of a medical
character before the jury and there are
statements made by the prisoner himself,
that he has suffered from epileptic fits.
The Court has had further evidence,
especially in the prison records, of his
having had attacks of epilepsy. But to
establish that is only one step; it must
be shown that the man was suffering from
an epileptic seizure at the time when he
committed the murders; and that has not
been proved.” (emphasis added)
08. In AIR 1966 SC 1, Bhikari vs. State of
U.P., following observations from paragraph 5 were
relied upon;
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“. There is no doubt that the burden
of proving an offence is always on the
prosecution and that it never shifts. It
would, therefore, be correct to say that
intention, when it is an essential
ingredient of an offence, has also to be
established by the prosecution. But the
state of mind of a person can ordinarily
only be inferred from circumstances.
Thus if a person deliberately strikes
another with a deadly weapon, which
according
ig to the common experience of
man-kind is likely to cause an injury and
sometimes even a fatal injury depending
upon the quality of the weapon and the
part of the body on which it is struck,
it would be reasonable to infer that what
the accused did was accompanied by the
intention to cause a kind of injury which
in fact resulted from the act. In such a
case the prosecution must be deemed to
have discharged the burden which rested
upon it to establish an essential
ingredient of the offence, namely the
intention of the accused inflicting a
blow with a deadly weapon.”
. Thus, according to learned Public
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Prosecutor, once the prosecution has proved that
the accused committed the act, which indicates
intention to inflict fatal injury, the prosecution
has discharged its burden and thereafter it is for
the defence to establish that the accused was
incapable of knowing the nature of his act at the
time he committed it. So far as Section 84 of IPC
is concerned, the Hon’ble Apex Court observed thus
in further part of paragraph 5;
". Section 84 of the Indian penal
Code can no doubt be invoked by a person
for
nullifying the evidence adduced by
the prosecution by establishing that he
was at the relevant time incapable of
knowing the nature of the act or that
what he was doing was either wrong or
contrary to law. Now, it is not for the
prosecution to establish that a person
who strikes another with a deadly weapon
was incapable of knowing the nature of
the act or of knowing that what he was
doing was either wrong or contrary to
law. Every one is presumed to know the
natural consequences of his act.
Similarly, everyone is also presumed to
know the law. These are not facts which
the prosecution has to establish. It is
for this reason that S.105 of the
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Evidence Act places upon the accused
person the burden of proving the
exception upon which he relies.”
. A Division Bench of this High Court in
the matter of Saraswati vs. State of Maharashtra
1993 (2) Mh.L.J.1529, was relied upon by learned
Counsel for respondent-accused for following
observations in paragraph 13 of the reported
judgment.
". We have already discussed the
case
iglaw in this regard and it must be
held that the duty of the prosecution
does not end merely in expounding the
prosecution evidence and trying to
establish that the ingredients of the law
are satisfied but if there is
corresponding material that has emerged
in the course of investigation that would
otherwise justify the case being brought
under one of exceptions, the prosecution
cannot be pardoned for having kept the
material back from the Court. ”
. In fact, reliance on this case is
uncalled for because, the learned counsel for the
respondent-accused has not been able to demonstrate
before us anything which can be termed as an
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attempt on the part of prosecution to suppress the
material that occurred during the course of
investigation and that would support the plea of
unsoundness of mind at the time of the incident.
. Shri Garud, Advocate, placed reliance
upon recent judicial pronuncement in the matter of
Bapu alias Gujraj Singh vs. State of Rajasthan
(2007) 8 SCC 66 and more particularly, head notes
“B”, “C” and “E” of the same. Head Note “C” which
borrows observations from paragraphs 7 and 8 which
were relied upon by Advocate Shri Garud, read thus;
". The burden of proof rests on an
accused to prove his insanity, which
arises by virtue of Section 105 of the
Evidence Act, 1872 and is not so onerous
as that upon the prosecution to prove
that the accused committed the act with
which he is charged. The burden on the
accused is no higher than that resting
upon a plaintiff or a defendant in a
civil proceeding. The onus has to be
discharged by producing evidence as to
the conduct of the accused shortly prior
to the offence and his conduct at the
time or immediately afterwards, also by
evidence of his mental condition and
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other relevant factors."
. According to learned counsel for the
defence, the accused has discharged the onus, by
examination of Dr.Sahastrabuddhe, which showed that
prior to the incident, accused was detected to be
Schizophrenic and was treated by the defence
witness. Mental state of the accused immediately
after incident, according to Shri Garud Advocate;
is proved by admission of his daughter Vaishali
(P.W.4). In fact, contents relied upon from Head
Note “D”, which are borrowed from judgment paras 11
and 12, lay down the same principle as in the later
half of Head Note “C” quoted hereinabove.
“Behaviour, antecedent, attendant and
subsequent to the event, may be relevant
in finding the mental condition of the
accused at the time of the event, but not
that remote in time. It is difficult to
prove the precise state of the offender’s
mind at the time of the commission of the
offence, but some indication thereof is
often furnished by the conduct of the
offender while committing it or
immediately after the commission of the
offence.”
. Although observations from paragraph no.
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8 as borrowed in Head Note “D” are relied upon,
those are not applicable to the case at hands for
the same reasons as recorded by us in expressiing
that ratio from the case of Saraswati (Supra) is
held by us, to be not applicable. It is observed
in paragraph no. 8 that where during the
investigation, previous history of insanity is
revealed, it is the duty of an honest investigator
to subject the accused to a medical examination and
place that evidence before the Court and if this is
not done, it creates a serious infirmity in the
prosecution case and the benefit of doubt has to be
given to the
accused. In the case at hands,
although reliance is placed by Adv.Shri Garud on
the observations, he has not demonstrated any
incident that investigating officer could have
learnt about history of insanity of the accused
during the course of investigation. In fact,
earliest point of time during the course of
enquiry, investigation and trial, when insanity of
the accused was revealed, was in August 2004, when
the matter was already before Additional Sessions
Judge, Shrirampur and hence, the observations from
paragraph no.8 of this judgment, relied upon by
Advocate Shri Garud, are of no assistance to the
defence in the present case. In paragraph no.7,
the Honourable Apex Court observed thus :
“Section 84 lays down the legal test of
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(15)responsibility in cases of alleged
unsoundness of mind. There is no
definition of “unsoundness of mind” in
I.P.C. The courts have, however, mainly
treated this expression as equivalent to
insanity. But the term “insanity” itself
has no precise definition. It is a term
used to describe varying degrees of
mental disorder. So, every person, who
is mentally diseased, is not ipso facto
exempted from criminal responsibility. A
distinction is to be made between legal
insanity
ig and medical insanity. A courtis concerned with legal insanity, and not
with medical insanity.”
. We feel that further observations in
paragraph nos.11 and 12 of the judgment, are
required to be read as complimentary to the portion
quoted hereinabove, relied upon by Adv.Shri Garud
In paragraph no.11 wherein, it is observed thus :
“The section itself provides that the
benefit is available only after it is
proved that at the time of committing the
act, the accused was labouring under such
a defect of reason, from disease of the
mind, as not to know the nature and
quality of the act he was doing, or that
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(16)even if he did not know it, it was either
wrong or contrary to law then this
section must be applied.”
. In paragraph no.12, it is observed thus :
“Mere abnormality of mind or partial
delusion, irresistible impulse or
compulsive behaviour of a psychopath
affords no protection under Section 84 as
the law contained in that section is
still squarely based on the outdated
M’Naughton rules of 19th century
England.”
9. Both learned counsel have placed reliance
upon the judgment of the Supreme Court, in the
matter of Dahyabhai Chhaganbhai V/s State of
Gujrat, AIR 1964 S.C.1563. The learned Public
Prosecutor has laid emphasis on Head Note “C” for
the purpose of claiming that unsoundness of mind at
the time of commission of the act, is required to
be probabilised by the defence i.e. when a plea of
legal insanity is set up, the Court has to consider
whether at the time of commission of the offence
the accused, 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.
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. Both the learned counsel have placed
reliance upon Head Note “G”, which speaks about
burden of proof, as under :
“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
igrests on the prosecution from thebeginning to the end of the trial. (2)
There is a rebuttable presumption that
the accused was not insane, when he
committed the crime, in the sense laid
down by S.84 of the 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
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(18)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.”
10. After discussing evidence of PW-1 Ashok
and PW-4 Vaishali, in his judgment paragraphs 6 to
8 and also referring to the evidence of two doctors
namely, PW-5
Dr.Adinath and PW-6 Dr.Shrikant, in
paragraph 11, learned Judge arrived at a conclusion
that the evidence showed, of accused having
assaulted the deceased with iron pestle and the
deceased having succumbed to the assault and,
therefore, a finding is recorded in paragraph 12
that, the death is homicidal. A negative finding
is recorded on point No.2, “Does prosecution
further prove that the accused assaulted the
deceaed with iron pestle and intentionally caused
her death ?”, not because the judge disbelieved the
evidence of PW-1 and PW-4, but he arrived at a
conclusion that the accused was entitled to benefit
of general exception under Section 84 of IPC and,
therefore, there was no intention to cause death.
. We can not avoid feeling that the
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reasons discussed by the learned Judge, or even
finding on point No.2 are not properly
compartmentalized. When a defence was raised that
that the accused was entitled to benefit of general
exceptions under Section 84 of IPC, the points
should have been (i), whether the accused committed
an act of inflicting fatal injuries on the head of
the victim Vatchalabai and (ii) whether the death
so ensued amounts to murder or accused is entitled
to benefit of general exception under Section 84,
being a person of unsound mind, incapable of
understanding the nature of his act, or that what
he was doing was wrong or contrary to law. Be that
as it may.
11. The evidence of Dr.Shrikant, who
performed post mortem and the nature of injuries
described, more particularly damage to the brain,
are sufficient to hold that the death was
homicidal. The nature of injuries does not permit
us to consider the possibility of such injuries
being result, either of suicide or accident. To
describe in brief, Vatchalabai had suffered difused
haematoma over right parieto temporal occipital
region. She had also suffered depressed
communitted fracture of right parietal bone, right
temporal bone and right mastoid bone with fracture
lines extending to base of skull. There was also
fracture of middle cranial fossa. It will not be
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an exaggeraton if we can say that the head of the
vicitm was smashed with iron pestle. The
description of the injuries rules out the
possibility of those being either accidental or
suicidal.
. So far as death being homicidal is
concerned, PW-1 and PW-4 are the children, not only
of the deceased but also of the accused. Their
evidence comes in the most natural form, especially
that of Ashok, who was sleeping on the same
platform, where parents were sleeping and where
accused inflicted
ig injury on the deceased
Vatchalabai. Vaishali had arrived at the scene,
either while accused was inflicting the blows or
soon thereafter. But, Vaishali knows accused
having entered the house and having searched for
pestle, which was the weapon ultimately used.
Evidence of these two witnesses also stands
corroborated by the Medical papers. The history of
the injury recorded at Pravara Rural Hospital,
Loni, as given by Gorakshanath Gadhe, was of the
assault by husband with hard and blunt object. (In
all probability, this Gorakshanath, who is not
examined, is also brother of the victim, who had
given that message to complainant Bhalnath on
telephone, through Mr. Kale). Consequently, the
narration of PW-1 Ashok gets some corroboration,
because entry of the history in the case paper was
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soon after the incident and without much time for
thinking and embellishment.
. Therefore, it must be said that the
prosecution has proved the accused to have
committed the act of smashing the head of the
victim Vatchalabai by means of iron pestle and thus
inflicting injury to her head, which resulted into
death. The prosecution has thus proved the death
of Vatchalabai to be homicidal and this leaves us
to consider the only aspect whether the defence has
brought material on record justifying acquittal of
the accused,
by giving him benefit of general
exception under Section 84 of IPC, by keeping in
mind the parameters laid down by the Hon’ble Apex
Court in Dahayabhai (supra).
(supra)
. Learned Trial Judge has discussed this
aspect in his judgment paragraphs 13 to 25 and has
arrived at a conclusion that the accused was not
knowing nature of his act, or that what he was
doing was either wrong or contrary to law. Till
the time the learned Judge recorded his conclusion
in paragraph 25, by expressing, “I am convinced
that accused was not knowing the nature of his
act….”,
act….” the Judge has discussed what were the
submissions of the lawyers on both the sides and on
what material they had placed reliance. Thus, it
must be said that the Judge only expressed, of his
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being convinced about unsoundness of mind of the
accused at the time of committing the act, on the
basis of material relied upon by the learned
counsel for the respondent-accused.
. It appears that the defence had relied
upon evidence of Dr.Sahatrabuddhe, examined as
defence witness, case paper (Exh.44) produced by
him, the fact that even after arrest the accused
was referred to Mental Asylum, Yerwada and
initially he was certified to be suffering from
mental disorder, by certificate (Exh.49) dated
11.10.2004 and
police had filled in the medical
history (Exh.50 which does not bear any date any
where and that seems to have been filled in by
Medical Officer and, therefore, will have to be
presumed to have been taken down on the same day as
Exh.49 dated 11.10.2004).
. We may state here itself that we are
justified in expressing that the ratio laid down in
couple of judicial pronouncements (Saraswati vs.
State of Maharashtra 1993 (2) Mh.L.J.1529 and head
note “D” in the matter of Bapu alias Gujraj Singh
v. State of Rajasthan (2007) 8 SCC 66), regarding
suppression of knowledge about previous history of
insanity of the accused by the prosecution, is not
applicable to the present case. It appears that in
October 2004, as soon as learned Sessions Judge
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suspected mental disorder of the accused, he
referred the accused to Asylum and the details are
brought on record in the form of Exhibits 49 and
50.
. From the discussion in paragraphs 18 and
19 of the judgment, it is evident that the defence
counsel also relied upon certain admissions by PW-4
Vaishali and absence of motive. Learned Judge
seems to have felt displeasure of the accused about
visit of his wife and daughter to the workshop, to
be inadequate as motive for committing murder of
the wife.
. As rightly argued by learned Public
Prosecutor, in all the discussion by the trial
court, there is no conscientious efforts to
consider the evidence relied upon by the defence
from the angle, “at the time of doing the act”.
act" No
doubt, it may not be possible to medically examine
the accused for his mental state at the time of
doing the act, but from the observations in the
cases relied upon by both the sides, it is clear
that the defence can bring on record, preponderance
of probability of accused being of unsound mind “at
the time of doing the act” by producing the
evidence, regarding unsoundness of mind of accused,
soon before and soon after the act. We must say
that, there is no evidence on record, which can be
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said to be indicating unsoundness of the mind of
the accused, soon before the alleged incident. On
reference to Exh.44, case paper produced by Dr.
Sahatrabuddhe, it can be seen that the treatment
had commenced on 6.1.1992 and continued upto
15.1.1997. The incident in question has taken
place on 30.7.2003 i.e. six years after the
treatment had discontinued. Although defence has
relied upon opinion by Dr.Sahatrabudde, that after
time gap, schizophrenic attack can relapse and in
such attack, the patient can commit grue-some act,
the defence has not brought on record any incident
between January
ig 1997 to July 2003, of accused
having relapsed and suffered schizophrenic attack
and under such attack having committed some
grue-some act.
. So far as evidence regarding possibility
of schizophrenic attack soon after the incident is
concerned, even from the order passed by the
learned Sessions Judge (Paperbook page 29), it is
evident that, it was realized on 20.8.2004 that the
accused was talking irrelevantly. This was
followed by an order of reference of the accused to
the Cviil Surgeon, Ahmednagar, whereafter the
accused was certified to be fit to face the trial,
in March 2005. Thus, relapse to schizophrenic
attack was in August, 2004, which is one year after
the incident on 30.7.2003. It must be taken into
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account that the accused was arrested. After
arrest, he was also produced before the Magistrate
and remanded to appropriate custody from time to
time. At least on the first occasion, when the
accused was produced before the Magistrate, it can
be presumed, that there were no signs of
unsoundness of mind, otherwise there could have
been reference of the accused by the Magistrate to
the Medical Officer, on that day only.
. In the miscellaneous file, there appears
first remand report dated 31.7.2003, wherein
accused is shown to have been arrested on 30.7.2003
at about 20.25 hours and produced before the
Judicial Magistrate, First Class, Shrirampur, on
31.7.2003 at 3.00 p.m. The Magistrate has recorded
that the accused has no complaint of ill-treatment
at the hands of the police. It is thus evident
that, on the day next after the incident, there
were no signs of unsoundness of mind. Even if we
are not to refer to the remand report in the
record, because it is not exhibited document,
presumption as to the action as recorded in the
remand report referred by us, will have to be drawn
because the Magistrate being an official, will have
to be presumed to have done official act properly.
By this evidence, it must be said that the defence
does not have material to show the accused having
projected signs of unsoundness of mind, soon after
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the incident. By the order of Sessions Judge and
observations of Mental Asylum, Yerwada (Exhibits 49
and 50), symptoms of unsoundness of mind were
noticed during the period August to October 2004.
12. This leaves us to consider admissions by
daughter Vaishali (PW-4). Learned Counsel has laid
emphasis on following admissions.
“. It is true that my father was
taking medicines for sound sleep. ….
It is true that my mother used to give
him tablets regularly. …… It is
true that though my father used to take
medicines and tablets, his trouble was
increased.
igIt is true that my father
many times used to forget what he was
doing. It is true that during that
period, he used to get annoyed on the
persons to whom he used to love.”
. In fact, these admissions also include
the fact that regularity of administration of
medicines to the respondent-accused was being taken
care by the deceased Vatchalabai herself and
although admissions are obtained from Vaishali that
the trouble of the father was on the increase, no
concrete incident of behaviour reflecting
unsoundness of mind was brought on record, by
admission of Vaishali. She has denied a suggestion
of accused having put sickle on the neck of her
aunt. There are further admissions by Vaishali,
relied upon by the defence, which read;
“. It is true that after the
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incident, my father was standing calmly
without any expression on his face.
…… It is true, in the morning, my
father took bath at about 6.00 a.m. He
also performed pooja. He also prepared
tea and took the same. After tea, he
told me that he would go to see the
deceased in the hospital.”
. While taking into consideration these
admissions, we can not ignore that Vaishali has
denied suggestion that since 8-10 days prior to the
incident, father was getting more trouble of his
mental disorder. If the father has behaved as if
nothing had happened after the victim was taken to
the hospital by others, even Vaishali admits that
after the incident, she slept inside the house.
. Unfortunately, apart from above
admissions, which were tried to be relied upon to
suggest that the accused suffered mental disorder,
soon after the incident, the earlier evidence shows
that till August 2004, nothing of the sort had
revealed and the defence has also brought on
record, in the cross examination of Vaishali, the
material which indicates that the accused was
planning the killing with cool mind. She has
deposed;
“. It is true that after dinner, I
had latched the door and slept. I again
say that when I was latching the door, my
father told me that he would put the
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chain from outside and asked us not to
latch the door from inside.”
. This material, brought on record in the
cross examination, must be read in the light of
deposition of Vaishali in her chief examination,
where she states;
". When I tried to latch the door
from in side, my father asked me not to
latch the door from in side and told
that, he would put chain from outside.
Thereafter, we slept inside the house.
At
about 2/2.30 a.m., my father came
inside the house. He asked me where
pestle was kept, I asked him why he was
in need of pestle. He asked me to keep
quiet. He then went to kitchen and came
with pestle. He then went out of the
house. He had shut the door of the
house. "
. We feel that, the description of the
conduct of the accused soon before the incident,
clearly indicates that he was working to a plan.
On the day he was produced before the Magistrate on
31.7.2003, there were no signs of unsoundness of
mind. Therefore, it must be said that, the defence
has not been successful in proving that, “at the
crucial point of time” or “at the time of doing the
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act” by unsoundness of mind, the respondent-accused
was incapable of knowing the nature of his act.
The evidence regarding unsoundness of mind brought
on record, is not regarding unsoundness of mind,
soon before or after the incident. On the
contrary, soon before the incident, accused appears
to have conscientiously acted upon the plan and
hence, we are unable to agree with the learned
Trial Judge that the defence has brought its case
within purview of general exceptions available
under Section 84 of IPC.
13. The
appeal will, therefore, have to be
allowed. We hold that the availability of general
exception under Section 84 of IPC is not
established, by bringing on record preponderance of
probability that, “at the time of doing act”,
act” the
respondent-accused was suffering from such
unsoundness of mind as to be unable to know the
nature of his act.
. Consequently, negative finding of the
trial court on point No.2 will have to be
reversed. We hold the accused guilty of murder of
Vatchalabai. We sentence accused to suffer
imprisonment for life (as this is not a case,
rarest of the rate to consider the capital
sentence) and fine of Rs.1,000/=, in default,
rigorous imprisonment for six months.
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. We clarify that in case, prison
authorities ever find the accused to have relapsed
to schizophrenia, he should be referred to nearest
Mental Asylum for appropriate treatment.
. A certified copy of this judgment be
furnished to the accused, free of costs, through
prison authorities.
(P.R.Borker, J.) (N.V.Dabholkar, J.)
uniplex/pnd
criapl-387.06
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