{"id":26522,"date":"2008-07-22T00:00:00","date_gmt":"2008-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-uttam-nandram-somwanshi-on-22-july-2008"},"modified":"2016-07-17T00:32:00","modified_gmt":"2016-07-16T19:02:00","slug":"the-state-of-maharashtra-vs-uttam-nandram-somwanshi-on-22-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-uttam-nandram-somwanshi-on-22-july-2008","title":{"rendered":"The State Of Maharashtra vs Uttam Nandram Somwanshi on 22 July, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
The State Of Maharashtra vs Uttam Nandram Somwanshi on 22 July, 2008<\/div>\n
Bench: N.V. Dabholkar, P. R. Borkar<\/div>\n
                             (1)\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                       BENCH AT AURANGABAD\n\n                  Criminal Appeal No. 387 of 2006\n\n\n    The State of Maharashtra,                ]\n\n\n\n\n                                                                                 \n    through PI, Shrirampur,                  ]\n    City Police Station,                     ]    Appellant\n    Shrirampur, Dist.Ahmednagar              ]    Ori.complainant\n\n\n\n\n                                                         \n                   vs\n\n    Uttam Nandram Somwanshi,                 ]\n    age 47 years, occup. Nil.                ]\n\n\n\n\n                                                        \n    r\/of Northern Branch, Ward               ]\n    No.4,in front of Magar Brick             ]\n    Furneess, Shrirampur, Taluka             ]    Respondent\n    Shrirampur, Dist.Ahmednagar              ]    accused.\n\n              ------\n\n\n\n\n                                        \n    Shri N.B.Khandare,Public Prosecutor, for appellant.\n    Shri N.C.Garud,Advocate (appointed) for respondent.\n              ------\n                           \n                  Coram: N.V.Dabholkar & P.R.Borkar, JJ.\n<\/pre>\n
                  Judgment reserved   on: July 17, 2008.
\n                  Judgment pronounced on July 22, 2008<\/p>\n
    Judgment (Per: Dabholkar, J.)<\/p>\n
    01.            The      State    feeling       aggrieved           by     the<\/p>\n
    judgment        of     acquittal     recorded         by       Additional<\/p>\n
    Sessions       Judge, Shrirampur in Sessions Case                     No.70<\/p>\n
    of     2003,    has filed this appeal under Section                       378<\/p>\n
    (1)     (3)    of the Code of Criminal Procedure,                       1973.\n<\/p>\n
    The     Respondent-accused         was       tried      for      offences<\/p>\n
    punishable          under Sections 302, 504 of Indian penal<\/p>\n
    Code     and    was acquitted at the conclusion                    of     the<\/p>\n
    trial, on 27.9.2005.            Hence, the appeal.\n<\/p>\n
    02.            The    prosecution        story can        be     narrated<\/p>\n
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\n                                  (2)<\/span><\/p>\n
    thus;\n<\/p>\n
    .              The         incident   in question took place                      on<\/p>\n
    30.7.2003 at about 2.30 a.m.                      This was on the night<\/p>\n
    between        29th        and 30th July 2003,             after        midnight<\/p>\n
    hours.         The place of incident is at Shrirampur and<\/p>\n
    in     front of the house of the accused.                         The       victim<\/p>\n
    of     the     incident Vatchalabai was the wife                          of     the<\/p>\n
    accused.        The prosecution story mainly unfolds from<\/p>\n
    the deposition of PW-1 Ashok and PW-4 Vaishali, who<\/p>\n
    are     the children of the accused and the                           deceased.\n<\/p>\n
    They were aged 20 and 22 years respectively, at the<\/p>\n
    time     of<\/p>\n
                    recording their evidence in 2005.                              Thus,<\/p>\n
    they     were       aged 18 and 20 at the time of                       incident<\/p>\n
    and are the individuals of sufficient understanding<\/p>\n
    and not child witnesses.\n<\/p>\n
    .              On      29.7.2003, the accused and brother of<\/p>\n
    PW-1     Ashok,        had     been     to        their     workshop.            The<\/p>\n
    deceased,        on        her way to the temple,                visited         the<\/p>\n
    workshop        at about 4.30 p.m.                At that time, she was<\/p>\n
    accompanied           by     daughter        Vaishali          (PW-4).           The<\/p>\n
    accused        was annoyed by this visit and he expressed<\/p>\n
    his     displeasure           about the same.             There       was       some<\/p>\n
    exchange        between        husband and wife on that                    count.\n<\/p>\n
    At     about     7.30 p.m., his other son returned                             home.\n<\/p>\n
    The      family        had     dinner        at     about        9.30          p.m.,<\/p>\n
    whereafter          the family went to sleep.                    The accused,<\/p>\n
    deceased        Vatchalabai and PW-1 Ashok were                         sleeping<\/p>\n
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\n                                   (3)<\/span><\/p>\n
    on     the        platform in front of the house and                  others<\/p>\n
    were     sleeping inside the house.                Even before going<\/p>\n
    to bed, the accused challenged deceased Vatchalabai<\/p>\n
    about her visit to the workshop and again there was<\/p>\n
    a quarrel between the two.\n<\/p>\n
    .                 At     about 2.30 a.m., PW-1 Ashok heard the<\/p>\n
    noise        of     assault and he removed the chaddar                   from<\/p>\n
    his face. He saw the accused assaulting Vatchalabai<\/p>\n
    with an iron pestle on her head.                   Ashok shouted and<\/p>\n
    snatched           the    pestle.       In   the    meanwhile,          other<\/p>\n
    family members, who were sleeping inside, also came<\/p>\n
    out.         The<\/p>\n
                           mother was seriously injured             and      head<\/p>\n
    injury        was        profusely bleeding.         Vatchalabai           had<\/p>\n
    become        unconscious.          Ravi, other son, arranged one<\/p>\n
    rickshaw.              PW-1   Ashok, Ravindra        Borkar,        Kailash<\/p>\n
    Borkar and others took her to Damani Hospital.                             One<\/p>\n
    Dattu Magar was asked to give message to brother of<\/p>\n
    the     victim           (PW-3 Bhalnath).     At Damani         hospital,<\/p>\n
    party        was       advised to take the injured            to      German<\/p>\n
    Hospital.              The German Hospital directed the                 party<\/p>\n
    to take the injured to Kamgar Hospital.                       After some<\/p>\n
    examination and C.T.                scan, the patient was shifted<\/p>\n
    to     Loni        Hospital.        At about 11.00     a.m.,        doctors<\/p>\n
    told     the        relatives of Vatchalabai that,                she      had<\/p>\n
    expired.\n<\/p>\n
    .                 On 30.7.2003, at about 3.30 a.m., brother<\/p>\n
    of     PW-3        Bhalnath     received     a     message      regarding<\/p>\n
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\n                               (4)<\/span><\/p>\n
    assault        on the sister by the accused and that                      she<\/p>\n
    was      admitted        in     the      hospital.      The        brother<\/p>\n
    communicated           the details to Bhalnath on              telephone<\/p>\n
    through one Mr.           Kale.       Bhalnath reached Shrirampur<\/p>\n
    and     followed the same path by which the party                         had<\/p>\n
    taken     the     victim       i.e       Damani    Hospital,         German<\/p>\n
    Hospital,         Kamgar       Hospital      and     lastly        Pravara<\/p>\n
    Hospital,        Loni.     After intimation regarding                 death<\/p>\n
    of     Vatchalabai,        Bhalnath came to          Shrirampur           and<\/p>\n
    lodged     a report with police station, which set the<\/p>\n
    investigation into motion.\n<\/p>\n
    03.<\/p>\n
                   For proving its case, the prosecution has<\/p>\n
    examined        seven     witnesses.        PW-1 Ashok         and      PW-4<\/p>\n
    Vaishali,        who are the children of accused and                      the<\/p>\n
    victim, provided direct and best possible evidence.\n<\/p>\n
    PW-3     Bhalnath is the brother of the deceased,                         but<\/p>\n
    he has no personal knowledge about the incident and<\/p>\n
    he     had joined the party only at Pravara                    Hospital,<\/p>\n
    Loni.\n<\/p>\n
    .              Dr.Kashinath,           attached         to         Pravara<\/p>\n
    Hospital        (PW-5)     has produced the case             papers        of<\/p>\n
    deceased        Vatchalabai,          from Pravara      Hospital          and<\/p>\n
    PW-6     Dr.      Shrikant        then      attached      to       Pravara<\/p>\n
    Hospital,        had     performed       post mortem.          The      spot<\/p>\n
    panchanama was drawn in the presence of PW-2 Deepak<\/p>\n
    and     Shri     S.R.         Rane,    Deputy     Superintendent           of<\/p>\n
    Police (PW-7), is the Investigating Officer.\n<\/p>\n
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\n                                 (5)<\/span><\/p>\n
    04.           The        accused,           while denying the               charge,<\/p>\n
    has    not     denied           relationship.          He      has      expressed<\/p>\n
    desire        to        examine           defence      witness        and          has,<\/p>\n
    accordingly,             examined            Dr.Mohan          Sahatrabuddhe.\n<\/p>\n
    Although       accused himself did not touch that aspect<\/p>\n
    during       the        course of his statement under                       Section<\/p>\n
    313    of     the Code of Criminal Procedure, 1973,                                the<\/p>\n
    defence        raised           by        cross     examination           of        the<\/p>\n
    witnesses          and examination of Dr.                Sahatrabuddhe as<\/p>\n
    defence witness, the accused has claimed benefit of<\/p>\n
    Section       84        of I.P.C.           and it is submitted on                 his<\/p>\n
    behalf       that<\/p>\n
                             at the time of the incident,                       he     was<\/p>\n
    incapable of knowing the nature of the act, or that<\/p>\n
    he    was incapable of knowing that what he was doing<\/p>\n
    was    either           wrong        or     contrary     to      law,        due     to<\/p>\n
    unsoundness of mind.\n<\/p>\n
    05.           On        going through the impugned                      judgment,<\/p>\n
    it can be said that by relying upon evidence of the<\/p>\n
    two    children (Ashok and Vaishali – PWs 1 and 4) of<\/p>\n
    the    accused and the victim, the learned Judge came<\/p>\n
    to    the conclusion that the act is committed by the<\/p>\n
    accused.           In     other           words, it is        held      that        the<\/p>\n
    accused       caused head injuries to wife                         Vatchalabai,<\/p>\n
    by    assaulting           with the help of the pestle,                        which<\/p>\n
    has    resulted into her death.                     Upon considering the<\/p>\n
    evidence       of defence witness Dr.                   Sahatrabuddhe and<\/p>\n
    certain        admissions             in      the      evidence         of         PW-4<\/p>\n
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\n                               (6)<\/span><\/p>\n
    Vaishali,        the learned Judge felt that the case                     of<\/p>\n
    the     respondent-accused          was     squarely      covered         by<\/p>\n
    general     exception under Section 84 of the IPC and,<\/p>\n
    therefore,        the     accused      is     acquitted        and       his<\/p>\n
    detention        in     Yerwada Mental Hospital           is      ordered<\/p>\n
    till he recovers.\n<\/p>\n
    06.          Heard       respective counsel.           Both of         them<\/p>\n
    placed     reliance upon reported judgments, in                      order<\/p>\n
    to     enlighten us as to when the benefit of                     general<\/p>\n
    exception        under Section 84 of IPC is available and<\/p>\n
    when     it is not.           Only thereafter, both the lawyers<\/p>\n
    referred<\/p>\n
                    to admissions by PW-4 Vaishali and                   other<\/p>\n
    material on record, in order to propound respective<\/p>\n
    case.\n<\/p>\n
    .            It         was    submitted      by   learned           Public<\/p>\n
    Prosecutor that the defence has not discharged onus<\/p>\n
    of creating a preponderance of probability that “at<\/p>\n
    the     time of doing the act” by unsoundness of mind,<\/p>\n
    the respondent-accused was incapable of knowing the<\/p>\n
    nature     of     his act, or that what he was doing                     was<\/p>\n
    unlawful        and,     therefore,         according     to      learned<\/p>\n
    Public      Prosecutor,          the    trial      court       was       not<\/p>\n
    justified        in granting benefit of general exception<\/p>\n
    under Section 84 of the IPC.\n<\/p>\n
    .            According to learned Defence Counsel, the<\/p>\n
    defence     has brought sufficient material on record,<\/p>\n
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\n                                  (7)<\/span><\/p>\n
    demonstrating          that        the accused was         schizophrenic<\/p>\n
    and     thus       created     a probability of            his      being       a<\/p>\n
    person     of       unsound mind at the time of                  doing       the<\/p>\n
    act,     by     providing          details of     his      mental        state<\/p>\n
    before and after the incident.\n<\/p>\n
    07.            AIR     1961 SC 998, State of Madhya Pradesh<\/p>\n
    vs.      Ahmadulla, was relied upon by learned                          Public<\/p>\n
    Prosecutor           for      following         observations                 from<\/p>\n
    paragraphs 3 and 8 of the judgment.\n<\/p>\n
                   “.\n<\/p><\/blockquote>\n
                            ig   The    burden   of    proof          that       the\n\n                   mental        condition of the accused was,                    at\n                          \n                   the     crucial       point of time, such                as    is\n\n<\/pre>\n
                   described by S.84 lies on the accused who<\/p>\n
                   claims the benefit of this exemption.”<\/p>\n<\/blockquote>\n
    .              The emphasis by learned Public Prosecutor<\/p>\n
    was     on the clause “at the crucial point of time.”.\n<\/p>\n
                                                   time.”\n<\/p>\n
    In    paragraph 8 of the judgment, the learned Public<\/p>\n
    Prosecutor          has placed reliance on the observations<\/p>\n
    which     are borrowed by the Hon’ble Apex Court                           from<\/p>\n
    the     decision       of the Court of Criminal                 Appeal        in<\/p>\n
    England       in     Henry     Perry 14 Cri App Rep               48.        The<\/p>\n
    observations relied upon read as under:-\n<\/p>\n
                   “.          Every      man is presumed to be sane<\/p>\n
                   and    to     possess a sufficient               degree        of<\/p>\n
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\n                          (8)<\/span><\/p>\n
               reason     to       be responsible for             his      acts<\/p>\n
               unless        the     contrary     is      proved.            To<\/p>\n
               establish       insanity       it must        be      clearly<\/p>\n
               proved that at the time of committing the<\/p>\n
               act     the     party is labouring            under         such<\/p>\n
               defect     of       reason    as not       to      know      the<\/p>\n
               nature and quality of the act which he is<\/p>\n
               committing-that           is- the physical             nature<\/p>\n
               and     quality       as distinguished            from       the<\/p>\n
               moral     –     or, if he does know the                  nature<\/p>\n
               and     quality of the act he is committing,<\/p>\n
               that     he     does not know that he is                  doing<\/p>\n
               wrong ……………………………..<\/p>\n
               There     is, however, evidence of a medical<\/p>\n
               character       before the jury and there                    are<\/p>\n
               statements        made by the prisoner himself,<\/p>\n
               that he has suffered from epileptic fits.<\/p>\n
               The     Court       has      had   further         evidence,<\/p>\n
               especially        in the prison records, of his<\/p>\n
               having     had attacks of epilepsy.                   But     to<\/p>\n
               establish that is only one step;                      it must<\/p>\n
               be     shown that the man was suffering from<\/p>\n
               an     epileptic seizure at the time when he<\/p>\n
               committed       the murders;        and that has not<\/p>\n
               been proved.” (emphasis added)<\/p>\n<\/blockquote>\n
    08.       In     AIR 1966 SC 1, Bhikari vs.                  State       of<\/p>\n
    U.P.,   following observations from paragraph 5 were<\/p>\n
    relied upon;\n<\/p>\n
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\n                   (9)<\/span><\/p>\n
        “.        There is no doubt that the burden<\/p>\n
        of     proving        an offence is always on                   the<\/p>\n
        prosecution and that it never shifts.                            It<\/p>\n
        would,     therefore, be correct to say that<\/p>\n
        intention,            when     it     is    an       essential<\/p>\n
        ingredient        of an offence, has also to be<\/p>\n
        established          by the prosecution.                 But the<\/p>\n
        state     of mind of a person can ordinarily<\/p>\n
        only     be     inferred            from    circumstances.<\/p><\/blockquote>\n
\n\n        Thus     if     a person        deliberately             strikes\n\n\n\n\n                                    \n        another       with      a      deadly       weapon,         which\n\n        according\n                 ig      to     the common          experience           of\n\n<\/pre>\n
        man-kind is likely to cause an injury and<\/p>\n
        sometimes        even a fatal injury                 depending<\/p>\n
        upon     the     quality of the weapon and                      the<\/p>\n
        part     of the body on which it is                      struck,<\/p>\n
        it would be reasonable to infer that what<\/p>\n
        the     accused        did was accompanied by                   the<\/p>\n
        intention to cause a kind of injury which<\/p>\n
        in fact resulted from the act.                       In such a<\/p>\n
        case     the     prosecution must be deemed                      to<\/p>\n
        have     discharged the burden which                      rested<\/p>\n
        upon      it     to         establish       an       essential<\/p>\n
        ingredient        of        the offence,         namely         the<\/p>\n
        intention        of     the accused           inflicting           a<\/p>\n
        blow with a deadly weapon.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
    .   Thus,         according        to      learned            Public<\/p>\n
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\n                              (10)<\/span><\/p>\n
    Prosecutor,       once     the prosecution has proved                   that<\/p>\n
    the    accused     committed          the act,     which       indicates<\/p>\n
    intention     to inflict fatal injury, the prosecution<\/p>\n
    has    discharged its burden and thereafter it is for<\/p>\n
    the    defence     to     establish that           the    accused         was<\/p>\n
    incapable     of knowing the nature of his act at                         the<\/p>\n
    time    he committed it.           So far as Section 84 of IPC<\/p>\n
    is     concerned, the Hon’ble Apex Court observed thus<\/p>\n
    in further part of paragraph 5;\n<\/p>\n
                \".           Section       84    of the Indian            penal\n\n\n\n\n                                            \n                Code     can no doubt be invoked by a person\n\n                for\n                        \n                        nullifying         the evidence adduced                by\n\n                the     prosecution by establishing that                       he\n                       \n                was     at     the relevant time             incapable         of\n\n                knowing       the      nature of the act             or     that\n\n                what     he        was doing was either            wrong       or\n      \n\n\n                contrary       to law.          Now, it is not for the\n   \n\n\n\n                prosecution          to      establish that a           person\n\n                who     strikes another with a deadly weapon\n\n\n\n\n\n                was     incapable         of knowing the nature                of\n\n                the     act        or of knowing that what he                 was\n\n                doing        was     either wrong or          contrary         to\n\n                law.         Every one is presumed to know                    the\n\n\n\n\n\n                natural            consequences        of        his        act.\n\n                Similarly,          everyone is also presumed                  to\n\n                know     the law.         These are not facts which\n\n                the     prosecution has to establish.                     It is\n\n                for     this        reason      that     S.105       of       the\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 13:37:18 :::<\/span>\n                                  (11)<\/span>\n\n                    Evidence          Act    places     upon       the     accused\n\n                    person           the      burden    of      proving           the\n\n<\/pre>\n
                    exception upon which he relies.”\n<\/p>\n
    .               A     Division          Bench of this High Court               in<\/p>\n
    the    matter of Saraswati vs.                State of          Maharashtra<\/p>\n
    1993     (2)        Mh.L.J.1529, was relied upon by                    learned<\/p>\n
    Counsel         for    respondent-accused                for         following<\/p>\n
    observations          in     paragraph       13     of      the       reported<\/p>\n
    judgment.\n<\/p>\n
                   \".           We     have     already       discussed           the\n\n                   case\n                             iglaw    in this regard and it must                   be\n\n                   held        that    the duty of        the       prosecution\n                           \n                   does        not    end merely in          expounding           the\n\n                   prosecution              evidence    and        trying          to\n\n<\/pre>\n
                   establish that the ingredients of the law<\/p>\n
                   are         satisfied        but       if        there          is<\/p>\n
                   corresponding             material that has             emerged<\/p>\n
                   in the course of investigation that would<\/p>\n
                   otherwise          justify the case being brought<\/p>\n
                   under        one of exceptions, the prosecution<\/p>\n
                   cannot        be    pardoned for having kept                   the<\/p>\n
                   material back from the Court.                     ”\n<\/p>\n
    .              In     fact,       reliance     on        this        case      is<\/p>\n
    uncalled        for because, the learned counsel for                          the<\/p>\n
    respondent-accused has not been able to demonstrate<\/p>\n
    before     us       anything       which     can be        termed       as     an<\/p>\n
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\n                               (12)<\/span><\/p>\n
    attempt     on the part of prosecution to suppress the<\/p>\n
    material     that     occurred          during       the        course           of<\/p>\n
    investigation       and         that would support the plea                     of<\/p>\n
    unsoundness of mind at the time of the incident.\n<\/p>\n
    .           Shri      Garud,          Advocate,    placed         reliance<\/p>\n
    upon     recent judicial pronuncement in the matter of<\/p>\n
    Bapu     alias    Gujraj Singh vs.            State        of     Rajasthan<\/p>\n
    (2007)     8 SCC 66 and more particularly, head                        notes<\/p>\n
    “B”,     “C” and “E” of the same.                Head Note “C” which<\/p>\n
    borrows     observations from paragraphs 7 and 8 which<\/p>\n
    were relied upon by Advocate Shri Garud, read thus;\n<\/p>\n
                \".            The     burden of proof rests on                      an\n\n                accused         to    prove      his     insanity,             which\n\n                arises         by     virtue of Section 105 of                   the\n      \n\n\n                Evidence         Act, 1872 and is not so onerous\n   \n\n\n\n                as      that        upon the prosecution             to        prove\n\n                that      the accused committed the act                        with\n\n\n\n\n\n                which         he is charged.          The burden on              the\n\n                accused         is    no higher than that                 resting\n\n                upon      a     plaintiff        or a defendant                in     a\n\n                civil         proceeding.        The onus has              to        be\n\n\n\n\n\n                discharged           by     producing evidence as                   to\n\n                the      conduct of the accused shortly prior\n\n                to      the     offence and his conduct                   at        the\n\n                time      or immediately afterwards, also                           by\n\n                evidence         of       his   mental     condition             and\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 13:37:18 :::<\/span>\n                            (13)<\/span>\n\n               other relevant factors.\"\n\n\n\n    .          According          to    learned    counsel        for      the\n\n    defence,      the    accused has discharged the onus,                   by\n\n\n\n\n                                                                              \n<\/pre>\n
    examination of Dr.Sahastrabuddhe, which showed that<\/p>\n
    prior   to the incident, accused was detected to                        be<\/p>\n
    Schizophrenic        and   was       treated     by    the      defence<\/p>\n
    witness.       Mental state of the accused              immediately<\/p>\n
    after   incident, according to Shri Garud                   Advocate;\n<\/p>\n
    is   proved     by admission of his            daughter       Vaishali<\/p>\n
    (P.W.4).       In fact, contents relied upon from                    Head<\/p>\n
    Note “D”, which are borrowed from judgment paras 11<\/p>\n
    and 12, lay down the same principle as in the later<\/p>\n
    half of Head Note “C” quoted hereinabove.\n<\/p>\n
               “Behaviour,          antecedent,        attendant           and<\/p>\n
               subsequent          to the event, may be relevant<\/p>\n
               in       finding        the mental condition of             the<\/p>\n
               accused at the time of the event, but not<\/p>\n
               that       remote in time.          It is difficult to<\/p>\n
               prove the precise state of the offender’s<\/p>\n
               mind at the time of the commission of the<\/p>\n
               offence,        but some indication thereof                  is<\/p>\n
               often       furnished       by the conduct           of     the<\/p>\n
               offender           while       committing            it      or<\/p>\n
               immediately          after the commission of                the<\/p>\n
               offence.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
    .          Although        observations from paragraph no.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                    (14)<\/span><\/p>\n
    8     as    borrowed in Head Note “D” are                        relied         upon,<\/p>\n
    those       are not applicable to the case at hands                               for<\/p>\n
    the     same reasons as recorded by us in                           expressiing<\/p>\n
    that       ratio       from the case of Saraswati (Supra)                          is<\/p>\n
    held       by us, to be not applicable.                      It is       observed<\/p>\n
    in      paragraph            no.        8     that       where     during         the<\/p>\n
    investigation,              previous         history       of     insanity         is<\/p>\n
    revealed,            it is the duty of an honest investigator<\/p>\n
    to subject the accused to a medical examination and<\/p>\n
    place that evidence before the Court and if this is<\/p>\n
    not     done,         it creates a serious infirmity                       in     the<\/p>\n
    prosecution case and the benefit of doubt has to be<\/p>\n
    given      to        the<\/p>\n
                                 accused.             In the    case     at      hands,<\/p>\n
    although         reliance          is placed by Adv.Shri Garud                     on<\/p>\n
    the     observations,              he       has    not     demonstrated           any<\/p>\n
    incident         that       investigating            officer       could        have<\/p>\n
    learnt      about           history of insanity of                the      accused<\/p>\n
    during      the        course       of       investigation.             In      fact,<\/p>\n
    earliest         point       of     time          during     the     course        of<\/p>\n
    enquiry,         investigation and trial, when insanity of<\/p>\n
    the     accused was revealed, was in August 2004, when<\/p>\n
    the     matter was already before Additional                             Sessions<\/p>\n
    Judge,      Shrirampur and hence, the observations from<\/p>\n
    paragraph            no.8    of this judgment, relied                    upon      by<\/p>\n
    Advocate         Shri       Garud, are of no assistance to                        the<\/p>\n
    defence         in     the present case.                 In paragraph           no.7,<\/p>\n
    the Honourable Apex Court observed thus :\n<\/p>\n
                    “Section           84 lays down the legal test                     of<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                              (15)<\/span><\/p>\n
                responsibility                 in     cases        of         alleged<\/p>\n
                unsoundness              of     mind.          There          is    no<\/p>\n
                definition          of        “unsoundness of mind”                 in<\/p>\n
                I.P.C.            The courts have, however, mainly<\/p>\n
                treated       this expression as equivalent to<\/p>\n
                insanity.          But the term “insanity” itself<\/p>\n
                has     no precise definition.                     It is a term<\/p>\n
                used     to        describe           varying       degrees         of<\/p>\n
                mental       disorder.              So, every person,              who<\/p>\n
                is     mentally diseased, is not ipso                          facto<\/p>\n
                exempted from criminal responsibility.                                A<\/p>\n
                distinction             is to be made between                  legal<\/p>\n
                insanity
\n                         ig       and medical insanity.                   A    court<\/p>\n
                is concerned with legal insanity, and not<\/p>\n
                with medical insanity.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
    .           We     feel        that       further     observations              in<\/p>\n
    paragraph       nos.11        and     12     of    the     judgment,           are<\/p>\n
    required to be read as complimentary to the portion<\/p>\n
    quoted   hereinabove, relied upon by Adv.Shri                              Garud<\/p>\n
    In paragraph no.11 wherein, it is observed thus :\n<\/p>\n
                “The     section          itself provides               that       the<\/p>\n
                benefit       is        available only after                  it    is<\/p>\n
                proved that at the time of committing the<\/p>\n
                act, the accused was labouring under such<\/p>\n
                a     defect of reason, from disease of                            the<\/p>\n
                mind,        as     not        to know    the       nature         and<\/p>\n
                quality       of the act he was doing, or that<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                              (16)<\/span><\/p>\n
                   even if he did not know it, it was either<\/p>\n
                   wrong     or    contrary     to         law      then      this<\/p>\n
                   section must be applied.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
    .              In paragraph no.12, it is observed thus :\n<\/p>\n
                   “Mere     abnormality      of      mind         or    partial<\/p>\n
                   delusion,        irresistible                  impulse        or<\/p>\n
                   compulsive       behaviour      of         a     psychopath<\/p>\n
                   affords no protection under Section 84 as<\/p>\n
                   the     law    contained     in that            section       is<\/p>\n
                   still     squarely    based        on      the       outdated<\/p>\n
                   M’Naughton        rules      of          19th         century<\/p>\n
                   England.”\n<\/p><\/blockquote>\n
    9.             Both learned counsel have placed reliance<\/p>\n
    upon     the     judgment      of the Supreme Court,                 in     the<\/p>\n
    matter     of    Dahyabhai       Chhaganbhai            V\/s      State       of<\/p>\n
    Gujrat,        AIR   1964     S.C.1563.     The     learned           Public<\/p>\n
    Prosecutor        has laid emphasis on Head Note “C”                        for<\/p>\n
    the purpose of claiming that unsoundness of mind at<\/p>\n
    the    time of commission of the act, is required                            to<\/p>\n
    be probabilised by the defence i.e.                     when a plea of<\/p>\n
    legal insanity is set up, the Court has to consider<\/p>\n
    whether     at       the time of commission of the                   offence<\/p>\n
    the    accused, by reason of unsoundness of mind, was<\/p>\n
    incapable        of knowing the nature of the act or that<\/p>\n
    he     was doing what was either wrong or contrary                           to<\/p>\n
    law.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                          (17)<\/span><\/p>\n
    .          Both     the       learned        counsel        have       placed<\/p>\n
    reliance   upon     Head Note “G”, which                  speaks        about<\/p>\n
    burden of proof, as under :\n<\/p>\n
               “The     doctrine of burden of proof in                          the<\/p>\n
               context       of     the plea of insanity may                     be<\/p>\n
               stated     in       the following propositions                      :<\/p>\n<\/blockquote>\n
               (1)     the     prosecution must               prove       beyond<\/p>\n
               reasonable          doubt       that the         accused         had<\/p>\n
               committed          the offence with the requisite<\/p>\n
               mens rea;          and the burden of proving that<\/p>\n
               always
\n                        igrests on the prosecution from the<\/p>\n
               beginning          to the end of the trial.                      (2)<\/p>\n
               There     is       a rebuttable presumption                    that<\/p>\n
               the     accused          was     not   insane,          when      he<\/p>\n
               committed          the     crime, in the sense                 laid<\/p>\n
               down     by     S.84       of the Penal            Code:         the<\/p>\n
               accused       may        rebut it by placing               before<\/p>\n
               the     court       all the relevant               evidence         –<\/p>\n
               oral,     documentary or circumstantial, but<\/p>\n
               the burden of proof upon him is no higher<\/p>\n
               than     that       rests upon a party                to     civil<\/p>\n
               proceedings          ;         (3) Even if the             accused<\/p>\n
               was     not     able to establish                conclusively<\/p>\n
               that     he     was       insane       at    the      time        he<\/p>\n
               committed          the     offence,          the        evidence<\/p>\n
               placed before the Court by the accused or<\/p>\n
               by the prosecution may raise a reasonable<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                    (18)<\/span><\/p>\n
                   doubt in the mind of the court as regards<\/p>\n
                   one        or     more of the ingredients                  of     the<\/p>\n
                   offence,              including       mens        rea      of     the<\/p>\n
                   accused          and in that case the court would<\/p>\n
                   be        entitled to acquit the accused on the<\/p>\n
                   ground          that the general burden of                    proof<\/p>\n
                   resting            on    the      prosecution            was      not<\/p>\n
                   discharged.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
    10.            After           discussing evidence of PW-1                   Ashok<\/p>\n
    and     PW-4 Vaishali, in his judgment paragraphs 6 to<\/p>\n
    8 and also referring to the evidence of two doctors<\/p>\n
    namely,        PW-5<\/p>\n
                              Dr.Adinath and PW-6 Dr.Shrikant,                          in<\/p>\n
    paragraph 11, learned Judge arrived at a conclusion<\/p>\n
    that     the     evidence            showed,        of     accused         having<\/p>\n
    assaulted        the          deceased with iron pestle                 and      the<\/p>\n
    deceased        having          succumbed      to     the      assault          and,<\/p>\n
    therefore,           a    finding is recorded in paragraph                          12<\/p>\n
    that,     the death is homicidal.                    A negative           finding<\/p>\n
    is     recorded          on     point        No.2,       “Does    prosecution<\/p>\n
    further        prove          that     the     accused       assaulted              the<\/p>\n
    deceaed        with iron pestle and intentionally                          caused<\/p>\n
    her death ?”, not because the judge disbelieved the<\/p>\n
    evidence        of       PW-1        and PW-4, but he arrived                  at     a<\/p>\n
    conclusion that the accused was entitled to benefit<\/p>\n
    of     general exception under Section 84 of IPC                               and,<\/p>\n
    therefore, there was no intention to cause death.\n<\/p>\n
    .              We        can     not     avoid       feeling        that        the<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                               (19)<\/span><\/p>\n
    reasons        discussed     by the learned Judge,                 or     even<\/p>\n
    finding         on      point     No.2         are      not        properly<\/p>\n
    compartmentalized.              When a defence was raised that<\/p>\n
    that the accused was entitled to benefit of general<\/p>\n
    exceptions        under     Section      84 of IPC,          the        points<\/p>\n
    should have been (i), whether the accused committed<\/p>\n
    an    act of inflicting fatal injuries on the head of<\/p>\n
    the     victim Vatchalabai and (ii) whether the                         death<\/p>\n
    so    ensued amounts to murder or accused is entitled<\/p>\n
    to    benefit of general exception under Section                            84,<\/p>\n
    being      a    person     of    unsound       mind,       incapable         of<\/p>\n
    understanding           the nature of his act, or that                    what<\/p>\n
    he was doing was wrong or contrary to law.                           Be that<\/p>\n
    as it may.\n<\/p>\n
    11.             The      evidence       of      Dr.Shrikant,                who<\/p>\n
    performed        post     mortem and the nature of                 injuries<\/p>\n
    described,        more particularly damage to the                     brain,<\/p>\n
    are        sufficient      to    hold        that    the     death          was<\/p>\n
    homicidal.            The nature of injuries does not permit<\/p>\n
    us    to       consider the possibility of              such       injuries<\/p>\n
    being      result,       either of suicide or accident.                      To<\/p>\n
    describe in brief, Vatchalabai had suffered difused<\/p>\n
    haematoma        over     right parieto        temporal          occipital<\/p>\n
    region.          She      had       also       suffered          depressed<\/p>\n
    communitted           fracture of right parietal bone, right<\/p>\n
    temporal        bone and right mastoid bone with fracture<\/p>\n
    lines      extending to base of skull.               There was            also<\/p>\n
    fracture        of middle cranial fossa.             It will not             be<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                     (20)<\/span><\/p>\n
    an     exaggeraton if we can say that the head of                                  the<\/p>\n
    vicitm            was     smashed        with      iron        pestle.             The<\/p>\n
    description               of     the     injuries           rules       out        the<\/p>\n
    possibility             of      those being either             accidental           or<\/p>\n
    suicidal.\n<\/p>\n
    .                 So      far     as     death        being      homicidal          is<\/p>\n
    concerned, PW-1 and PW-4 are the children, not only<\/p>\n
    of     the        deceased but also of the                  accused.             Their<\/p>\n
    evidence comes in the most natural form, especially<\/p>\n
    that     of        Ashok,        who     was     sleeping        on     the       same<\/p>\n
    platform,           where        parents were sleeping                and        where<\/p>\n
    accused            inflicted
\n                                  ig        injury         on      the        deceased<\/p>\n
    Vatchalabai.                 Vaishali        had arrived at the              scene,<\/p>\n
    either        while          accused was inflicting the blows                       or<\/p>\n
    soon     thereafter.                 But,       Vaishali       knows        accused<\/p>\n
    having        entered           the house and having searched                      for<\/p>\n
    pestle,           which        was     the    weapon     ultimately              used.\n<\/p>\n
    Evidence           of     these        two      witnesses        also         stands<\/p>\n
    corroborated by the Medical papers.                            The history of<\/p>\n
    the     injury           recorded       at Pravara          Rural       Hospital,<\/p>\n
    Loni,        as     given by Gorakshanath Gadhe, was of                            the<\/p>\n
    assault by husband with hard and blunt object.                                     (In<\/p>\n
    all     probability,             this        Gorakshanath, who              is     not<\/p>\n
    examined,           is       also brother of the victim, who                       had<\/p>\n
    given        that        message        to    complainant          Bhalnath         on<\/p>\n
    telephone,              through Mr.          Kale).    Consequently,               the<\/p>\n
    narration           of       PW-1 Ashok gets some              corroboration,<\/p>\n
    because           entry of the history in the case paper was<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                  (21)<\/span><\/p>\n
    soon     after the incident and without much time                           for<\/p>\n
    thinking and embellishment.\n<\/p>\n
    .               Therefore,          it   must   be   said      that         the<\/p>\n
    prosecution            has     proved     the     accused        to        have<\/p>\n
    committed        the     act     of smashing the          head        of    the<\/p>\n
    victim Vatchalabai by means of iron pestle and thus<\/p>\n
    inflicting        injury to her head, which resulted into<\/p>\n
    death.      The prosecution has thus proved the                         death<\/p>\n
    of     Vatchalabai to be homicidal and this leaves                           us<\/p>\n
    to consider the only aspect whether the defence has<\/p>\n
    brought     material on record justifying acquittal of<\/p>\n
    the     accused,<\/p>\n
                            by     giving him       benefit     of        general<\/p>\n
    exception        under       Section 84 of IPC, by keeping                   in<\/p>\n
    mind     the parameters laid down by the Hon’ble                           Apex<\/p>\n
    Court in Dahayabhai (supra).\n<\/p>\n
                        (supra)<\/p>\n
    .           Learned          Trial       Judge has discussed               this<\/p>\n
    aspect     in his judgment paragraphs 13 to 25 and has<\/p>\n
    arrived     at     a conclusion that the accused was                        not<\/p>\n
    knowing     nature       of     his act, or that what              he       was<\/p>\n
    doing     was    either wrong or contrary to law.                          Till<\/p>\n
    the     time the learned Judge recorded his conclusion<\/p>\n
    in     paragraph       25, by expressing, “I            am     convinced<\/p>\n
    that    accused        was     not knowing the nature              of      his<\/p>\n
    act….”,
\n    act….”        the     Judge has discussed what               were        the<\/p>\n
    submissions of the lawyers on both the sides and on<\/p>\n
    what    material they had placed reliance.                     Thus,        it<\/p>\n
    must    be said that the Judge only expressed, of his<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                 (22)<\/span><\/p>\n
    being     convinced         about unsoundness of mind of                     the<\/p>\n
    accused        at the time of committing the act, on                         the<\/p>\n
    basis     of     material            relied   upon   by      the      learned<\/p>\n
    counsel for the respondent-accused.\n<\/p>\n
    .              It     appears         that the defence had             relied<\/p>\n
    upon     evidence         of     Dr.Sahatrabuddhe,           examined         as<\/p>\n
    defence        witness,         case paper (Exh.44) produced                  by<\/p>\n
    him,     the     fact that even after arrest the                      accused<\/p>\n
    was      referred          to     Mental      Asylum,      Yerwada           and<\/p>\n
    initially        he       was certified to be        suffering              from<\/p>\n
    mental     disorder,            by    certificate    (Exh.49)            dated<\/p>\n
    11.10.2004          and<\/p>\n
                                police had filled in             the      medical<\/p>\n
    history        (Exh.50      which does not bear any date                     any<\/p>\n
    where     and       that        seems to have been filled              in     by<\/p>\n
    Medical        Officer      and, therefore, will have                  to     be<\/p>\n
    presumed to have been taken down on the same day as<\/p>\n
    Exh.49 dated 11.10.2004).\n<\/p>\n
    .              We     may       state     here itself that            we     are<\/p>\n
    justified in expressing that the ratio laid down in<\/p>\n
    couple     of       judicial pronouncements (Saraswati                       vs.<\/p>\n
    State     of Maharashtra 1993 (2) Mh.L.J.1529 and head<\/p>\n
    note     “D” in the matter of Bapu alias Gujraj                          Singh<\/p>\n
    v.      State of Rajasthan (2007) 8 SCC 66), regarding<\/p>\n
    suppression         of knowledge about previous history of<\/p>\n
    insanity       of the accused by the prosecution, is not<\/p>\n
    applicable to the present case.                  It appears that in<\/p>\n
    October    2004,          as soon as learned         Sessions            Judge<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                     (23)<\/span><\/p>\n
    suspected        mental          disorder       of     the      accused,         he<\/p>\n
    referred        the accused to Asylum and the details are<\/p>\n
    brought     on        record in the form of Exhibits 49                         and<\/p>\n
    50.<\/p>\n
    .              From        the discussion in paragraphs 18 and<\/p>\n
    19     of the judgment, it is evident that the defence<\/p>\n
    counsel also relied upon certain admissions by PW-4<\/p>\n
    Vaishali        and        absence      of motive.           Learned          Judge<\/p>\n
    seems to have felt displeasure of the accused about<\/p>\n
    visit     of his wife and daughter to the workshop, to<\/p>\n
    be     inadequate          as motive for committing murder                       of<\/p>\n
    the wife.\n<\/p>\n
    .              As      rightly         argued     by      learned         Public<\/p>\n
    Prosecutor,           in        all    the discussion by           the        trial<\/p>\n
    court,     there           is     no     conscientious          efforts          to<\/p>\n
    consider        the        evidence relied upon by the                   defence<\/p>\n
    from the angle, “at the time of doing the act”.\n<\/p>\n
                                              act\"                                   No\n\n    doubt,     it may not be possible to medically examine\n\n\n\n\n\n    the     accused        for his mental state at the                     time      of\n\n    doing     the       act, but from the observations                       in     the\n\n    cases     relied           upon by both the sides, it is                      clear\n\n<\/pre>\n
    that the defence can bring on record, preponderance<\/p>\n
    of probability of accused being of unsound mind “at<\/p>\n
    the     time     of        doing       the   act”    by     producing           the<\/p>\n
    evidence, regarding unsoundness of mind of accused,<\/p>\n
    soon     before        and soon after the act.                  We must         say<\/p>\n
    that,     there is no evidence on record, which can be<\/p>\n
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\n                                  (24)<\/span><\/p>\n
    said     to     be indicating unsoundness of the mind                                of<\/p>\n
    the     accused, soon before the alleged incident.                                   On<\/p>\n
    reference        to     Exh.44, case paper produced                          by     Dr.<\/p>\n
    Sahatrabuddhe,             it      can be seen that the                  treatment<\/p>\n
    had     commenced           on     6.1.1992         and        continued           upto<\/p>\n
    15.1.1997.            The        incident       in question            has        taken<\/p>\n
    place     on     30.7.2003              i.e.      six     years        after        the<\/p>\n
    treatment        had discontinued.                Although defence                  has<\/p>\n
    relied     upon opinion by Dr.Sahatrabudde, that after<\/p>\n
    time     gap, schizophrenic attack can relapse and                                   in<\/p>\n
    such     attack, the patient can commit grue-some act,<\/p>\n
    the     defence has not brought on record any incident<\/p>\n
    between        January
\n                             ig      1997     to July       2003,        of      accused<\/p>\n
    having     relapsed and suffered schizophrenic                                attack<\/p>\n
    and     under       such         attack         having     committed               some<\/p>\n
    grue-some act.\n<\/p>\n
    .              So     far as evidence regarding possibility<\/p>\n
    of     schizophrenic attack soon after the incident is<\/p>\n
    concerned,          even         from     the    order      passed           by     the<\/p>\n
    learned        Sessions Judge (Paperbook page 29), it                                is<\/p>\n
    evident that, it was realized on 20.8.2004 that the<\/p>\n
    accused         was     talking            irrelevantly.               This         was<\/p>\n
    followed by an order of reference of the accused to<\/p>\n
    the     Cviil       Surgeon,             Ahmednagar,       whereafter               the<\/p>\n
    accused        was certified to be fit to face the trial,<\/p>\n
    in     March     2005.            Thus, relapse           to      schizophrenic<\/p>\n
    attack was in August, 2004, which is one year after<\/p>\n
    the     incident on 30.7.2003.                   It must be taken                 into<\/p>\n
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\n                                     (25)<\/span><\/p>\n
    account           that        the     accused       was     arrested.            After<\/p>\n
    arrest,           he was also produced before the Magistrate<\/p>\n
    and     remanded              to appropriate custody from time                      to<\/p>\n
    time.         At        least on the first occasion,                    when       the<\/p>\n
    accused           was produced before the Magistrate, it can<\/p>\n
    be      presumed,               that        there      were    no     signs         of<\/p>\n
    unsoundness              of     mind, otherwise there               could        have<\/p>\n
    been     reference of the accused by the Magistrate to<\/p>\n
    the Medical Officer, on that day only.\n<\/p>\n
    .                 In      the miscellaneous file, there appears<\/p>\n
    first         remand           report         dated       31.7.2003,        wherein<\/p>\n
    accused is shown to have been arrested on 30.7.2003<\/p>\n
    at     about        20.25           hours     and     produced      before         the<\/p>\n
    Judicial           Magistrate,          First Class, Shrirampur,                    on<\/p>\n
    31.7.2003 at 3.00 p.m.                      The Magistrate has recorded<\/p>\n
    that     the accused has no complaint of ill-treatment<\/p>\n
    at     the        hands of the police.                It is      thus       evident<\/p>\n
    that,        on     the day next after the                   incident,           there<\/p>\n
    were     no signs of unsoundness of mind.                           Even if         we<\/p>\n
    are     not        to     refer        to the remand          report        in     the<\/p>\n
    record,           because        it     is     not     exhibited        document,<\/p>\n
    presumption              as     to the action as recorded                   in     the<\/p>\n
    remand report referred by us, will have to be drawn<\/p>\n
    because the Magistrate being an official, will have<\/p>\n
    to     be presumed to have done official act properly.\n<\/p>\n
    By     this evidence, it must be said that the defence<\/p>\n
    does     not have material to show the accused                               having<\/p>\n
    projected           signs of unsoundness of mind, soon after<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                (26)<\/span><\/p>\n
    the     incident.        By the order of Sessions Judge                 and<\/p>\n
    observations of Mental Asylum, Yerwada (Exhibits 49<\/p>\n
    and     50),     symptoms        of unsoundness     of     mind       were<\/p>\n
    noticed during the period August to October 2004.\n<\/p>\n
    12.            This      leaves us to consider admissions by<\/p>\n
    daughter Vaishali (PW-4).              Learned Counsel has laid<\/p>\n
    emphasis on following admissions.\n<\/p>\n
                   “.      It is true that my father was
\n                   taking medicines for sound sleep.   ….
\n                   It is true that my mother used to give
\n                   him tablets regularly. ……     It is<\/p>\n
                   true that though my father used to take
\n                   medicines and tablets, his trouble was
\n                   increased.\n<\/p>\n
                              igIt is true that my father
\n                   many times used to forget what he was
\n                   doing.   It is true that during that
\n                   period, he used to get annoyed on the<\/p>\n
                   persons to whom he used to love.”\n<\/p>\n
    .              In     fact,     these admissions also            include<\/p>\n
    the     fact     that      regularity    of   administration             of<\/p>\n
    medicines to the respondent-accused was being taken<\/p>\n
    care     by     the      deceased      Vatchalabai       herself        and<\/p>\n
    although admissions are obtained from Vaishali that<\/p>\n
    the     trouble of the father was on the increase,                       no<\/p>\n
    concrete         incident         of     behaviour         reflecting<\/p>\n
    unsoundness         of    mind     was brought     on     record,        by<\/p>\n
    admission of Vaishali.              She has denied a suggestion<\/p>\n
    of     accused        having put sickle on the neck              of     her<\/p>\n
    aunt.         There      are further admissions by           Vaishali,<\/p>\n
    relied upon by the defence, which read;\n<\/p>\n
                   “.          It     is   true      that    after          the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                  (27)<\/span><\/p>\n
                incident, my father was standing calmly
\n                without any expression on his       face.
\n                ……   It is true, in the morning, my
\n                father took bath at about 6.00 a.m.    He
\n                also performed pooja. He also prepared
\n                tea and took the same. After tea, he
\n                told me that he would go to see the<\/p>\n
                deceased in the hospital.”\n<\/p>\n
    .           While           taking    into     consideration           these<\/p>\n
    admissions,           we     can not ignore that          Vaishali         has<\/p>\n
    denied suggestion that since 8-10 days prior to the<\/p>\n
    incident,        father          was getting more trouble of               his<\/p>\n
    mental     disorder.             If the father has behaved as               if<\/p>\n
    nothing     had happened after the victim was taken to<\/p>\n
    the    hospital by others, even Vaishali admits                          that<\/p>\n
    after the incident, she slept inside the house.\n<\/p>\n
    .           Unfortunately,                  apart         from         above<\/p>\n
    admissions,           which were tried to be relied upon                    to<\/p>\n
    suggest     that the accused suffered mental disorder,<\/p>\n
    soon after the incident, the earlier evidence shows<\/p>\n
    that     till     August          2004, nothing of the           sort      had<\/p>\n
    revealed        and        the    defence    has    also     brought        on<\/p>\n
    record,     in the cross examination of Vaishali,                          the<\/p>\n
    material        which        indicates      that    the    accused         was<\/p>\n
    planning        the        killing    with cool      mind.        She      has<\/p>\n
    deposed;\n<\/p>\n
                “.      It is true that after dinner, I
\n                had latched the door and slept. I again
\n                say that when I was latching the door, my
\n                father told me that he would put the<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                (28)<\/span><\/p>\n
                  chain from outside and asked us not                               to
\n                  latch the door from inside.”\n<\/p>\n
    .             This        material, brought on record in                       the<\/p>\n
    cross     examination,               must be read in the            light        of<\/p>\n
    deposition         of     Vaishali in her chief                examination,<\/p>\n
    where she states;\n<\/p>\n
                  \".           When        I      tried to latch the              door\n\n\n\n\n                                                             \n                  from        in side, my father asked me not                       to\n\n                  latch        the        door     from in side         and        told\n\n                  that,        he        would put chain from             outside.\n\n\n\n\n                                                 \n                  Thereafter,             we      slept inside the           house.\n\n                  At\n                             \n                            about        2\/2.30     a.m., my       father          came\n\n                  inside        the        house.      He asked         me        where\n                            \n                  pestle        was kept, I asked him why he                       was\n\n                  in        need of pestle.           He asked me to               keep\n\n                  quiet.            He then went to kitchen and came\n      \n\n\n                  with        pestle.            He then went out            of     the\n   \n\n\n\n                  house.            He     had     shut the      door        of     the\n\n                  house.        \"\n\n\n\n\n\n    .             We        feel     that,        the description           of      the\n\n    conduct       of    the accused soon before the                     incident,\n\n    clearly       indicates          that he was working to a                     plan.\n\n\n\n\n\n<\/pre>\n
    On the day he was produced before the Magistrate on<\/p>\n
    31.7.2003,         there        were no signs of unsoundness                    of<\/p>\n
    mind.     Therefore, it must be said that, the defence<\/p>\n
    has     not    been successful in proving that, “at                            the<\/p>\n
    crucial point of time” or “at the time of doing the<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                                     (29)<\/span><\/p>\n
    act” by unsoundness of mind, the respondent-accused<\/p>\n
    was     incapable          of knowing the nature of                      his        act.\n<\/p>\n
    The     evidence regarding unsoundness of mind brought<\/p>\n
    on     record,        is not regarding unsoundness of                             mind,<\/p>\n
    soon      before           or       after        the     incident.             On    the<\/p>\n
    contrary, soon before the incident, accused appears<\/p>\n
    to     have        conscientiously acted upon the                        plan        and<\/p>\n
    hence,        we     are        unable to agree with                the        learned<\/p>\n
    Trial     Judge that the defence has brought its                                    case<\/p>\n
    within        purview          of    general        exceptions           available<\/p>\n
    under Section 84 of IPC.\n<\/p>\n
    13.            The<\/p>\n
                              appeal        will, therefore, have to                     be<\/p>\n
    allowed.            We hold that the availability of general<\/p>\n
    exception           under           Section        84     of    IPC        is        not<\/p>\n
    established, by bringing on record preponderance of<\/p>\n
    probability          that, “at the time of doing act”,
\n                                                     act”                               the<\/p>\n
    respondent-accused                   was         suffering           from           such<\/p>\n
    unsoundness          of        mind as to be unable to                   know        the<\/p>\n
    nature of his act.\n<\/p>\n
    .              Consequently,                negative       finding           of     the<\/p>\n
    trial     court          on      point       No.2        will      have        to    be<\/p>\n
    reversed.           We hold the accused guilty of murder of<\/p>\n
    Vatchalabai.               We       sentence            accused      to         suffer<\/p>\n
    imprisonment             for     life       (as this is           not      a      case,<\/p>\n
    rarest         of     the        rate       to    consider        the          capital<\/p>\n
    sentence)          and     fine        of    Rs.1,000\/=,            in     default,<\/p>\n
    rigorous imprisonment for six months.\n<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>
\n                            (30)<\/span><\/p>\n
    .           We       clarify    that     in      case,       prison\n\n    authorities       ever find the accused to have relapsed\n\n<\/pre>\n
    to   schizophrenia, he should be referred to nearest<\/p>\n
    Mental Asylum for appropriate treatment.\n<\/p>\n
    .           A     certified    copy    of this     judgment         be<\/p>\n
    furnished       to   the accused, free of costs,            through<\/p>\n
    prison authorities.\n<\/p>\n
    (P.R.Borker, J.)                       (N.V.Dabholkar, J.)<\/p>\n
    uniplex\/pnd
\n    criapl-387.06<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 13:37:18 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The State Of Maharashtra vs Uttam Nandram Somwanshi on 22 July, 2008 Bench: N.V. Dabholkar, P. R. Borkar (1) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-26522","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe State Of Maharashtra vs Uttam Nandram Somwanshi on 22 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-uttam-nandram-somwanshi-on-22-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Maharashtra vs Uttam Nandram Somwanshi on 22 July, 2008 - 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