Sikkim High Court
Narad Pariyar @ Navin vs State Of Sikkim on 27 August, 2014
Bench: S. K. Sinha, S. P. Wangdi
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
JUDGMENT
D.B. Crl.A. No.14 of 2013 Narad Pariyar @ Navin, S/o Man Singh Pariyar, R/o Middle Sichey, P.O. Sichey, P.S. Gangtok, East Sikkim.
(At present - Rongyek Jail) ... Appellant versus State of Sikkim, through the Chief Secretary, Government of Sikkim, Gangtok, East Sikkim. ... Respondent CORAM HON'BLE MR. JUSTICE S. K. SINHA, JUDGE HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE DATE OF JUDGMENT : 27-08-2014 For Appellant : Mr. N. Rai, Senior Advocate as Legal Aid Counsel with Ms. Tamanna Chhetri and Ms. Bindu Gurung, Advocates.
For Respondent : Mr. Karma Thinlay Namgyal, Additional Public Prosecutor with Mrs. Pollin Rai, Assistant Public Prosecutor and Mr. D. K. Siwakoti, Advocate.
2Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim Wangdi, J.
1. By this Appeal, the Appellant seeks to assail the impugned judgment dated 31-07-2013 passed by the Learned Sessions Judge, Special Division - II, East Sikkim at Gangtok in S. T. Case No.23 of 2011 by which the Appellant was convicted for offence under Section 302 of the Indian Penal Code (in short the "IPC") and sentenced to undergo imprisonment for life and a fine of ` 500/- (Rupees five hundred) and in default of payment of the fine to undergo further simple imprisonment for a period of 5 days.
2(i). The genesis of the prosecution case is traced to 07-12-2008 when on that day at about 0510 hours SI Bijendra Thapa, P.W. 5, Night Duty Officer, Sadar Police Station, Gangtok, received a telephonic information from Vinod Tamang, P.W.7, Jailor of the State Jail at Rongyek, East Sikkim, stating that the Appellant who had parked his taxi van outside the main gate of State Jail declared to him that he had committed the murder of his wife. On receipt of the information, P.W.5, Bijendra Thapa, rushed to the State Jail for enquiry and indeed found the 3 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim Appellant, driver of Maruti Taxi Van bearing registration no.SK-04/6290, at that place smeared with blood with his two minor children in the back seat of the taxi after having committed the murder of his wife, namely, Pinky Hingmang, at his residence at Sichey, Gangtok on that day at about 0400 hours.
(ii) FIR No.129(12)08 dated 07-12-2008 under Section 302 IPC was then registered against the Appellant and investigation taken up.
(iii) During the investigation, it was revealed that the Appellant and his deceased wife were living with his their minor children in a rented house of one Shri Mani Raj Rai, P.W.2, a retired Senior Accounts Officer, at Middle Sichey, on payment of rent of ` 600/- per month. The Appellant was a Nepali National and was employed as a driver under different owners last of which was one Dev Kumar Mukhia, P.W.6 who owned a Maruti Taxi Van bearing registration no.SK-04/6290. Although initially he was employed on casual basis later, a purchase agreement was entered into between the Appellant and P.W.6 in respect of the taxi van at a consideration value of 4 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim ` 45,000/- to be paid in instalments of ` 5,000/- per month which the Appellant was paying regularly.
(iv) That the Appellant's love marriage with his deceased wife extending to 5 years was found to have been strained about 2 years before the date of the incident as a result of which the deceased used to live with her parents very often. The Appellant was also not in good terms with his in-laws which was revealed from the fact that on 08-08-2007 the Appellant had lodged a General Diary in the Police Out Post against them due to certain differences. The relation between the Appellant and his wife had got deteriorated when the Appellant started to doubt infidelity on the part of his wife resulting in frequent violent brawls taking place between them. It is stated that the situation led the Appellant in preparing to murder the deceased and in furtherance of his preparation he viciously assaulted her with a 'machete' in the night of the incident inflicting multiple sharp cut injuries when she was asleep resulting in causing her death. It is further stated that from the sequence of events it could be inferred that the Appellant had intentionally committed the murder of his wife after due preparation and adequate knowledge. 5 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim
(v) Accordingly charge-sheet was filed against him under Section 302 IPC and under Section 14 of the Foreigners Act, 1946 read with Notification No.848/HP dated 10-12-1965.
3. The Learned Trial Court upon hearing the parties and on consideration of the materials on record, framed charge under Section 302 IPC against the Appellant to which he pleaded not guilty when read out to him and claimed to be tried.
4(i). It is relevant to note that the case was initially heard and disposed of by the Court of the Learned Sessions Judge, Special Division - II as Sessions Trial Case No.15 of 2010 and by judgment dated 18-02-2012 the Appellant was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and payment of fine of ` 100/- in default of payment of which to undergo simple imprisonment of 5 more days.
(ii) In the Appeal filed by the Appellant being Crl.A. No.8 of 2012, Mr. N. Rai, Learned Senior Counsel, appearing for the Appellant, as Legal Aid Counsel, did not question the findings on the merits of the case but, 6 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim restricted himself only to the quantum of the sentence on the plea of mental illness of the Appellant as being the cause for commission of the offence.
(iii) It was the case of the Appellant that he had been led to commit the offence due to his mental disorder on account of him suffering from paranoid schizophrenia but the Psychiatrist who had treated the Appellant during the trial and whose evidence was crucial for the Appellant, was not examined causing him grave prejudice in being deprived of the opportunity of cross-examining him. It is also of relevance to note that during the proceedings of the Appeal before a Bench of this Court of which one of us (Wangdi, J.) was a part, the prosecution was directed to ascertain as to whether the Appellant was suffering from mental illness and whether he was under continued medication. On receipt of the report of the Board of Medical Specialist and after considering the other evidence, it was felt that it would be in the interest of justice if the matter was remanded to the Trial Court for examination of the Psychiatrist who had treated the Appellant. On the consent of the parties by order dated 26-04-2013 the impugned judgment was set aside and the 7 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim case remanded to the Court of the Learned Sessions Judge, Special Division - II, East Sikkim at Gangtok, for the limited purpose of examination of the Psychiatrist with a direction to decide the case afresh based upon the additional evidence and the evidence already on record.
(iv) In pursuance of this order, S. T. Case No.23 of 2011 was registered in the Court of the Learned Sessions Judge, Special Division - II, East Sikkim at Gangtok and upon examination of the Psychiatrist as P.W.19, the matter was heard and disposed of by the impugned judgment convicting the Appellant for having committed the offence under Section 302 IPC as noted earlier. It is against this that present Appeal has been filed. 5(i). In this Appeal also, Mr. N. Rai, Learned Senior Advocate, appearing for the Appellant, as Legal Aid Counsel, chose to confine himself in raising the plea of defence under Section 84 IPC on the ground that the act of the Appellant in causing the death of his wife was by reason of unsoundness of his mind.
(ii) It was submitted by Mr. N. Rai that the Learned Trial Court failed to appreciate the glaring evidence in the 8 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim prosecution witnesses clearly establishing the unstable mental condition of the Appellant at the time of commission of the act. Specific reference was made to the evidence of P.Ws 1, 2, 3, 4, 5, 10, 11, 18 and 19 which, as per him, clearly revealed that fact. The portions of the evidence relied upon on behalf of the Appellant are reproduced below for the sake of convenience:-
P.W.1 - Lall Bdr. Chettri "....................................... It was around 5 a.m. on the same day when I was on duty in the main gate of the Jail, I heard the horn outside the main gate. On hearing the same, I came out from the main gate to enquire as to why he was blowing the horn. At that time, I saw accused sitting in the driver seat and was blowing the born. When I enquired, the accused straight away told me that he has murdered his wife and also told me to put him in the Jail. The accused further told me that the two children who were inside the van are his children. ..........................................
XXX- by Ld. Legal Aid Counsel Shri N. Rai (Sr. Counsel) for accused.
....................................................... It is true the vehicle was driven by accused himself. It is not a fact that when I enquired from the accused as to why he killed his wife, the accused told me that somebody repeatedly told him "Maar Maar' (to kill). ............................................"
P.W.2 - Mani Raj Rai XXX- by Ld. Sr. Counsel Shri N. Rai (Legal Aid) for accused.
"Accused was my tenant for about 1 ½ year. ........................ (When the defence asked the witness as to whether the accused was insane person at the relevant time. The witness answered that the previous day of the incident, the accused was screaming on the road. He states 9 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim that he does not know as to why he was screaming on the road.) ..................................."
P.W.3 - Mohan Gurung "I know the accused standing in the dock as he lives nearby my house and drives a vehicle. I cannot remember the date, month and the year. About 3 years back, I was called by the police of Sadar P.S., the accused was in the custody of police. At that time, accused disclosed before the police that his mind told him to kill his wife and then he killed his wife with a chedo (bamphok). The above statement was disclosed by the accused to the police in our presence. ..............................." P.W.4 - Bikash Rai XXX- by Ld. Sr. Counsel (Legal Aid) Shri N. Rai for accused.
"............................................ It is true I had stated to the police that on 05.12.2008, I had seen accused screaming on the road at around 9 p.m. and I enquired as to why he was screaming on the road at night time. It is true I did not notice the words he was using while screaming. I do not know whether the accused was mentally unsound or not."
P.W.5 - Bijendra Thapa ".............................................. That on 07.12.08 at about 0510 hrs I received telephonic information from jailor Mr Binod Tamang of State Jail Rongyek stating that he has been informed by the jail staff that on unidentified person has parked his van out side the main gate of the jail and confessed of having committed murder of his own wife inside his house at Sichey. On receipt of the above telephonic information, I rushed to the State jail, Rongyek where I found accused Narad Praiyar in his driving seat of vehicle no. Sk- 04/6290 (Maruti Van), along with his two small kids. He was talking with the jail staff and the sentry in front of the main gate of the jail. His face, hands and the wearing apparel were full of blood. When inquired about the incident he disclosed that he had committed murder of his 10 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim wife named Pinki Hingmang, 25 yrs, around 04 a.m. on the same day and the dead body was reportedly lying at his resident at Sichey. Thereafter I brought the accused alongwith his two minor children at Sadar Police Station. .................... XXX by Ld. Sr. (Legal Aid) Counsel Shri N. Rai for accused.
........................................ I have recorded the telephonic information of the incident in the G.D. at around 0510 hrs. immediately on receipt of telephonic information, I rushed to the State jail. I first met the accused out side the State jail. When I first inquired, the accused told me that he had killed his wife. It is true when I first met the accused he said that he had committed a crime. ............................................" P.W.8 - Birkha Bdr. Subba ".............................. I am a Assistant Sub Jailor from 2006 at Rongyek State Jail. On the relevant day I was on night duty. It was in the morning but I cannot remember the time, SAP guard who was on duty at the main gate of the jail informed me that one taxi driver who had killed his wife had come to the main gate driving a taxi van along with a weapon and two minor children. The SAP guard further informed that the taxi driver had killed his wife he wanted to be put in the jail. On hearing the above information I called up Sadar P.S. but I could not get through. Thereafter I informed jailor Shri Vinod Tamang about the same over the telephone.
XXX- by Ld. Sr. (Legal Aid) Counsel Shri N. Rai for accused.
......................................... SAP guard told me that the taxi driver had come with the weapon, i.e., Bamphok which I myself saw it. I went to the main gate after about half and hour after receiving the above information. When I reached the main gate I saw accused, two minor children, a taxi van and a Bamphok and at that time SAP guard was also present but the police of Sadar P.S. had not arrived. The children were at the back seat of the taxi van, the accused was sitting in the driver seat and the Bamphok must have been in the second seat. ...................................." 11 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim P.W.10 - Chandan Sundas XXX- by Ld. Sr. (Legal Aid) Counsel Shri N. Rai for accused.
"....................................... It is true on that day, deceased Pinki told me that accused behaved like an insane and she also told me that accused along with his children has gone to visit Guruji. She further told me that the accused had broken the window panes of his house. ............................."
P.W.11- San Kumar Sundas XXX- by Ld. Sr. (Legal Aid) Counsel Shri N. Rai for accused.
"It is true on 06.12.2008, the accused was brought to my house by his wife since he was behaving like an insane. Since I was busy with my personal work, I could not take him to a jhakri or lama. .................................."
P.W.18 - Tshering Sherpa XXX- by Ld. Sr. (Legal Aid) Counsel Shri N. Rai for accused.
"........................................... It is true the accused in his 161 statement has stated that somebody tried to kill him and he should sacrifice. ........................ I did not send the accused to any psychiatrist for his mental evaluation as he was not having any sign of mental illness. .................. The relevant portion marked 'A' with red ink pen is the statement made by Ramesh Chaudhari U/S 161 statement. The relevant portion marked 'B' with red ink pen is the statement made by Mohan Gurung U/S 161 statement. The relevant portion madeked 'C' with red ink pen is the statement made by Chandan Sundas U/S 161 statement. The relevant portion marked 'D' with red ink pen is the 161 statement made by S.K. Sundas. ............................................."
P.W.19 - Dr. C. L. Pradhan "........................................................... .................. I examined Narad Pariyar as per the Order of the Hon'ble Court dated 19.06.2009. 12 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim On my examination I found the mental status of the patient as delusion of persecution, delusion of reference, and auditory hallucination, delusion of infidelity, his judgment was impared and insight was absent which shows he is a established case of schizophrenia at that point of time. However, I cannot say whether he was suffering from insanity at the time of committing the offence or not. Exbt-20 is my certificate dated 20.05.2013 and Exbt-20(a) is my signature therein.
Cross-examination by Ld. Legal Aid Sr. Counsel Shri N. Rai for the Accused.
When I examined the patient on 17.06.2013 one more symptom I got from this patient is "thought broadcasting". It is also a symptom of schizophrenia. Cases such as "Mata Utroyo"
common in the State is of dissociative mental disorder and I have not come across such cases to be of schizophrenia. It is possible that when a person is seized with schizophrenia, he/she may act like an insane person. It is true that in the case of schizophrenia, a person apprehence that somebody would kill him or hurt him, such symptom is suggestive of "delusion of persecution". It is true that in case of schizophrenia, a person also hears voices in the ear which is suggestive of "auditory hallucination".
It is true that in many such cases, the person seized with schizophrenia is prompted by hallucination to kill somebody, such as "kill kill kill". .............................................."
(iii) It was submitted that the evidence of P.Ws 1, 2, 5 and 8, reproduced above would reveal that the Appellant had gone to the State Jail at Rongyek taking along with him his two minor children and declared that he had killed his wife and that he should be taken into custody. As per him, no sane person would have taken such a step if 13 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim indeed he had committed the murder and, that even if he had gone to surrender he would have gone to the Police Station and not the jail. Taking his two minor children with him and declaring that he had committed such a heinous offence was an unmistakable indication of the fact that the Appellant was not in a sound mind during the period.
(iv) Mr. Rai went on to submit that the fact that the Appellant was indeed suffering from mental disorder was also revealed by the evidence of P.W.3 when he had stated that the Appellant had disclosed to the Police "that his mind told him to kill his wife and then he killed his wife with a chedo (bamphok)". The evidence of P.W.4 revealing that in the night of 05-12-2008 at about 9 p.m. he had seen the Appellant screaming on the road was another circumstance that disclosed the mental illness of the Appellant at that time. The evidence of P.W.10 as reproduced above also reinforced the fact that the Appellant was suffering from mental disorder as the witness had been informed by the deceased that the Appellant had gone to visit 'Guruji' with his children. Similarly, the evidence of P.W.11, a relative of the 14 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim Appellant, would also establish that the Appellant was mentally deranged even as on 06-12-2008. As per the Learned Senior Counsel, even P.W.18, the Investigating Officer (in short the "I.O."), also had corroborated the evidence of these witnesses and that the final clinching evidence was that of the Psychiatrist, P.W.19, who as per the Learned Senior Counsel, has deposed in most unequivocal terms on the mental condition of the Appellant.
(v) It is then submitted that the prosecution had failed to establish any motive against the Appellant for committing the murder of his wife. On the contrary, it is in evidence of P.W.14 and 15, the father-in-law and the mother-in-law of the Appellant respectively, that the Appellant and the deceased had a harmonious relationship and that there was no dispute or any sort of problem between them. From the evidence of the landlord, namely, Mani Raj Rai, P.W.2 and his son Bikash Rai, P.W.4, as well as his neighbour, Mohan Gurung, P.W.3, there is no indication of any discord between the Appellant and the deceased wife which corroborated the evidence of P.Ws 14 and 15.
15Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim
(vi) Referring to the proceedings under Section 313 of the Code of Criminal Procedure, 1973 (in short the "Cr.P.C."), it was submitted that the fact that the Appellant had committed the offence when he was in a deranged mental condition also finds support from his explanation to some of the circumstance put to him as reproduced hereunder:-
"17. P.W.3 deposed that police also seized vehicle along with its key and documents vide Ext. 3 bearing his signature. He identified his signatures in Ext. 4, 5, 6 and 7. He also identified M.O. VIII and IX seized from your body. He identified M.O. II to VII seized by the police from your rented house at Sichey in their presence. He identified the photographs collectively marked Ext. 8 taken at the P.O. and the body of the deceased. What have you to say?
Ans: I do not know anything about the incident, later I found myself in Jail.
.........................................................................................
39. It is also in the evidence of I.O. that during your interrogation, you disclosed in presence of independent witnesses that you killed your wife with a bamphok and has concealed the bamphok below the driver's seat of your vehicle bearing No.SK-04/6290. What have you to say?
Ans: I did not make such statement.
......................................................................................
44. It is also in the evidence of I.O. that you even battered your wife that a metal pan which was found broken beside the dead body of the deceased Pinki Hingmang on the spot. What have you to say?16 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim Ans: It is not true."
(vii) As per the Learned Counsel for the Appellant, the explanations would unmistakably reveal that the Appellant was not in his normal mental condition and that the offence was committed when he was overwhelmed by the abnormality of his mind. The severity of the abnormal condition of his mind, as per the Learned Senior Counsel, becomes manifest by the manner in which the injuries were inflicted on the deceased as would appear from the evidence of the Medico Legal Expert, P.W.16. The Learned Senior Counsel most strenuously urged that a person in his normal state of mind would not resort to such action when there was no reason to do so and, therefore, the only inference that could be drawn by such act was that the Appellant had committed the offence when he was overcome by his mental ailment. Mr. N. Rai submits that the mental condition of the Appellant could also be gathered from the fact that during the proceedings of the trial, the Learned Trial Court having found that the Appellant did not appear to be normal, had directed that he be examined by a Psychiatrist as would appear from 17 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim the relevant extracts of different orders reproduced below:-
"30.07.2009 ............................................
Dr. C.L. Pradhan, MD, Neuropsychiatry, STNM Hospital, Gangtok has sent a letter to this Court with reference to letter No. 196/Prison/09 dated 06.07.2009 regarding the examination and opinion on the accused. He has opined that the accused would be able to stand in a Court of law and understand the Court proceedings but he needs continuous medication. This opinion has been given by the Psychiatrist on the basis of his examination of the accused on 11.05.2009 i.e., almost about more than two and a half months ago. However the accused today in Court does not appear to be normal. Therefore he may again be got examined by a Psychiatrist and fresh report be furnished to this Court to commence the trial of his case.
The Report be furnished on or before the next date by the SP (Jail).
..................................."
"13.08.2009 ............................................
Report has been received from Dr. C.L. Pradhan, M.D., Psychiatrist, STNM Hospital stating that the accused has shown significant insight, judgment and knows about his illness and that he can face the Court trial. However he needs to continue medication for about one year on regular monthly review by the Psychiatrist.
.........................................."18 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim "28.10.2010 ............................................
Though accused submitted that he can understand the proceedings of the Court, but Ld. Sr. Advocate submits that accused does not appear to be of sound mind. Ld. Sr. Advocate prays that accused be forwarded to psychiatric for examination and opinion as to whether he is fit to understand the Court proceedings or not.
Ld. P.P. raised no objection.
Considered, prayer allowed.
Sr. S.P. Jail is directed to send the accused to the Psychiatric Doctor of S.T.N.M. Hospital for examination and report as to whether the accused is fit to understand the court proceedings or not. The report of the doctor shall be submitted on or before 10.11.2010.
.........................................."
"10.11.2010 ............................................
Seen the psychiatrist opinion of accused Narad Pariyar given by Dr. C.L. Pradhan, Neuro-Psychiatrist, S.T.N.M. Hospital dated 09.11.2010.
Neuro-Psychiatrist has expressed that accused Narad Pariyar is suffering from schizophrenia and is under treatment since 2009 and he has not developed full insight. The accused still has psychotic symptoms, hence he is not fit to 19 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim understand the Court proceedings. Doctor has also advised for continuation of medication and regular follow-up by the psychiatrist.
Ld. Sr. Advocate Shri N. Rai after going through the report of Neueo-Psychiatrist suggested that the further proceedings in this case be postponed to facilitate the continuous treatment of the accused. He prays that next date be fixed only in the month of February, 2011.
Heard Ld. Counsel, considered his submission.
As per the opinion of Neuro-Psychiatrist, accused is not in a position to understand the Court proceedings. In view of the above report, further proceeding in this case is postponed till February, 2011.
..............................................."
"25.02.2011 ............................................
The Jailor, State Central Prison, Rongyek has submitted compliance report along with the report of Dr. C.L. Pradhan, Neuro-Psychiatrist and Patient Card, same are kept on record.
As per the report of the doctor, the accused is fit to face the Court proceedings.
............................................"
(viii) Summing up his submission, it was urged that it has been established by the prosecution's own witnesses 20 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim that the Appellant had a history of insanity and that he had killed his wife for no reason and that he had gone to the State Jail instead of the Police Station on his own taking his two minor children along with him. That these circumstances confirmed the plea taken by the Appellant that the act was committed by him by reason of unsoundness of his mind and, therefore, protected by the application of Section 84 IPC. Reference in this regard was made to Siddhapal Kamala Yadav vs. State of Maharashtra : AIR 2009 SC 97.
(ix) Relying upon the case of the Bombay High Court in the matter of State of Maharashtra vs. Govind Mhatarba Shinde reported in 2010 CRI.L.J. 3586, it was submitted that "it is accepted principle of Criminal jurisprudence that the burden is always on the prosecution and never shifts"
and that "the accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and the circumstances obtaining in the case".
(x) By referring to Shrikant Anandrao Bhosale vs. State of Maharashtra : AIR 2002 SC 3399 and the decision of a Division Bench of the Gauhati High Court in Debeswar Bhuyan vs. State of Assam : 2012 CRI.L.J. 21 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim 274, it was submitted that, in a case like present one, when the Appellant is suffering from paranoid schizophrenia which is proved by the evidence of Dr. C. L. Pradhan, P.W.19, who in turn is corroborated by the evidence of P.Ws 3, 4, 10, 11 and 18, there can be no manner of doubt that the Appellant has been able to discharge the burden of preponderance of probability and, therefore, protected under Section 84 IPC and the first exception to Section 300 IPC.
(xi) Relying upon the decision of a Division Bench of the Hon'ble Calcutta High Court in the matter of Sahadeb Mondal vs. State of West Bengal reported in 2007 CRI.L.J. 1728 it was submitted that when it had come in the evidence of the I.O., P.W.18, that he had an indication of the mental condition of the accused during the investigation, it was expected of him to have got the Appellant examined medically so as to ascertain whether he was insane or not. This duty cast upon the I.O. has admittedly not been discharged. It is strongly urged that the insanity of the Appellant at the time of commission of the offence is apparent from the evidence earlier alluded to. It, therefore, stands established, as per him, that at 22 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim the time of commission of the offence the Appellant was insane and, therefore, the Appeal has to succeed.
(xii) Mr. N. Rai also made an alternative plea without prejudice to the plea of insanity in urging that even if the plea of insanity was not accepted the offence would not fall under 302 IPC but under 304 Part II IPC as there was no pre-meditation on the part of the Appellant to commit the offence and that it had taken place in the heat of passion triggered by his suspicion of his wife's fidelity. He sought reliance upon Mani Raj Rai vs. State of Sikkim :
2013 CRI.L.J. 4581 (Sikkim) and Crl.A. No.3 of 2004 :
Arjun Rai vs. State of Sikkim where in similar circumstances the accused persons had been given the benefit of the said provision.
6(i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand, would submit that the plea of insanity seeking protection under Section 84 IPC by the Appellant would not sustain in view of the glaring evidence to the contrary. It is his submission that the instances of so-called insanity by referring to the evidence of various prosecution witnesses are not such as 23 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim to satisfy the rigours of the burden of proof which the Appellant is required under the law to discharge. It is submitted that the insanity which the Appellant claims to have been suffering from ought to be at the time when the offence was committed and not before or after.
(ii) Referring to the evidence of various prosecution witnesses, it is submitted that these fully establish that the Appellant was in perfectly normal mental condition and that there was no sign of insanity. Reference in this regard was made to the evidence of P.Ws 1, 2, 3, 4, 5, 6, 8, 9, 12, 13 and 16. It is submitted that P.W.1, a SAP personnel on duty at the main gate of the Rongyek State Jail, has deposed that he had seen the Appellant for the first time at about 5 a.m. of 07-12-2008 when he was on duty and that the Appellant, unhesitatingly on his own had told him that he had murdered his wife and asked him to take him to jail and that the two children inside the Maruti Taxi Van were his. It has also come in his evidence that "I did not notice as to whether accused was of unsound mind or not. It is true when accused narrated the incident about the murder of his wife by him, he was normal". The evidence of P.W.2, the landlord, would reveal that there was no 24 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim indication of insanity which the Appellant claimed to have suffered. To the contrary, he was found to be normal since during the period of his tenancy of one and half years under him, the Appellant had not defaulted in payment of rent and further that "the accused and his wife deceased never had any kind of problem or fight". The evidence of P.W.6 and P.W.12 corroborates this as would appear from the following extracts of their depositions:
P.W.6 - Dev Kumar Mukhia "I know the accused standing in the dock as he use to drive my taxi van bearing no.Sk- 04/6290. The accused drove my van for about a year prior to the incident. The accused use to gave me monthly installment of Rs. 5,000/-. I am a resident of Sichey. The accused had all together given me Rs. 26,000/- till the incident. ............................."
P.W.12 - Ramesh Kumar Agarwal "I know the accused standing in the dock as he drove my vehicle for about 6 months in the year 2006-07. He used to drive my pick-up utility and was mentally fit. ................................."
(iii) That there was a marital discord between the Appellant and his wife is revealed from the evidence of P.Ws 9 and 14, the brother-in-law and father-in-law respectively of the Appellant. In support of his submission, he has relied upon the following portions of their evidence:-25 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim P.W.9 - Suraj Darjee XXX- by Ld. Sr. Counsel (Legal Aid)Shri N. Rai for accused.
"....................... Pinkey is my own youngest sister. The accused used to eye put my sister with others for which they often used to have problem/ quarrel and accused used to beat my sister. It is not a fact that my above statement is false statement as I am real brother of deceased Pinkey. I used to go to house of Pinkey to put Bhai tika during Diwali. .............................." P.W.14 - Bhakta Bahadur Darjee XXX- by Ld. Sr. (Legal Aid) Counsel Shri N. Rai for accused.
"............................... The accused never used to allow my daughter to stay in my house and he had a habit of eye putting my daughter with others. ............................."
(iv) The fact that there was a discord between the two is also revealed by the evidence of P.W.13, a Police personnel, posted at Tadong Out Post, as would appear from his evidence extracted below:-
"............... On 08.08.2007 when I returned from day foot patrolling duty along with H/G Indra Giri, one person had come to Tadong O.P. On the basis of verbal direction from I/C Ongyal Bhutia, I went through the report of Nabin Pariyar which was to the effect of family problem with in-laws. I accordingly recorded the same in the G.D."
(v) It was next contended that the nature of the injuries as described in the Medico Autopsy report, Exhibit 26 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim 11, proved by the Medico Legal Expert, P.W.16, shows that there were 14 injuries out of which injury nos.1 to 9 were fatal and that the injuries were caused by sharp edged weapon. It also reveals that most of the injuries were inflicted on the neck and face area of the deceased. The severity and the number of injuries would lead one to draw a reasonable inference that the injuries were inflicted in full consciousness with the definite intention to cause the death of the victim. It is further submitted that the absence of abnormality in the mental condition of the Appellant can also be inferred from the medical prescription sheets/out-patient cards marked Exhibits 18 and 19 pertaining to the Appellant during the time of investigation. These prescription sheets would show that the Appellant was sent for medical examination on 07-12- 2008, 09-12-2008 and 11-12-2008 and, in none of those have the doctors mentioned of any abnormality in the mental condition of the Appellant. It is the submission of the Learned Additional Public Prosecutor that had they noticed so, they would have certainly recorded it in the prescription sheets and advised treatment. 27 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim
(vi) It was submitted that apart from the above, another circumstance which weigh heavily against the Appellant is his total denial of all the incriminating circumstances while being examined under Section 313 Cr.P.C. It was thus submitted that the Appellant's attempt at seeking protection under Section 84 IPC and under exception I to Section 300 IPC cannot be sustained.
(vii) Relying upon the decision of Sudhakaran vs. State of Kerala : (2010) 10 SCC 582 it was submitted that "for the purposes of claiming the benefit of the defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act". Similarly, the decision of Surendra Mishra vs. State of Jharkhand :
(2011) 11 SCC 495 was relied upon on proposition that "an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity". It thus submitted that the onus as per law is required to be discharged by producing evidence as to the conduct of the Appellant prior to the offence, at the time or immediately after the offence, which in the present case the Appellant has failed. The fact that the Appellant on his own went to the jail to surrender and that he did 28 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim not run away would not by itself show that the Appellant was insane at the time of the commission of the offence.
He sought support on this contention to Elavarasan vs. State represented by Inspector of Police : (2011) 7 SCC
110.
(viii) On the plea of there being no motive and that motive on the part of the Appellant to commit the offence has not been established, it was submitted that for this sole reason it cannot be said that such mental disposition did not exist in the mind of the Appellant. As per the Learned Additional Public Prosecutor, the evidence emerging from P.Ws 9 and 14 clearly established the suspicion nurtured by the Appellant pertaining to the fidelity of his deceased wife. Under such positive evidence motive stands established quite conclusively.
(ix) For these reasons, as per the Learned Additional Public Prosecutor, the Appellant had failed to discharge his burden of proof of his insanity and was, therefore, not entitled to protection under Section 84 IPC and the Appeal, as per him, deserved to be dismissed. 29 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim 7(i). We have given our thoughtful consideration to the respective submissions advanced on behalf of the parties and have carefully examined the evidence and the records. As already noted by us, on behalf of the Appellant the factum of the commission of offence by him is not questioned but on such admitted position he seeks exoneration from law from the act under Section 84 IPC. From the conspectus of decisions cited at the bar, the position that emerges is that whether or not the Appellant was insane when he had committed the act is a question of fact to be decided in the light of the evidence available on the records. The parameters of consideration when a plea of protection under Section 84 IPC is raised, has been laid down in detail and most succinctly in Surendra Mishra (supra). Since this decision sets out the entire gamut of considerations in such cases, it is felt appropriate to deal with it in some detail for which purpose the following portions which are relevant are reproduced:-
"8. Nobody had appeared on behalf of the respondent. However, we have perused the records and bestowed our consideration to the submission advanced by Mr Agarwal and we do not find any substance in the same. In view of the plea raised it is desirable to consider the meaning of the expression "unsoundness of mind" in the context of Section 84 of the Penal Code and for its 30 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim appreciation, we deem it expedient to reproduce the same. It reads as follows:
"84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
Section 84 of the Penal Code is found in its Chapter IV, which deals with general exceptions. From a plain reading of the aforesaid provision it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law.
9. But what is unsoundness of mind? This Court had the occasion to consider this question in Bapu v. State of Rajasthan [(2007) 8 SCC 66], in which it has been held as follows: (SCC p.74, para
13) "13. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section."
10. The scope and ambit of the Section 84 of the Penal Code also came up for consideration before this Court in Hari Singh Gond v. State of M.P. [(2008) 16 SCC 109] in which it has been held as follows: (SCC pp.112-12, para
10) 31 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim "10. '17. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in IPC. 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 and medical insanity. A court is concerned with legal insanity, and not with medical insanity.' [Bapu v. State of Rajasthan]"
11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Penal Code.
............................................................................
13. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the 32 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him.
14. Reference in this connection can be made to a decision of this Court in T.N. Lakshmaiah v. State of Karnataka [(2002) 1 SCC 219], in which it has been held as follows: (SCC p.224, paras 9-11) "9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
10. In State of M.P. v. Ahmadulla [AIR 1961 SC 998] this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. 33 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim
11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, 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 is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought." "
(ii) What follows from the above is that from a bare reading of Section 84 IPC, the act constituting the offence will not be considered as an offence if done by a person, who at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act or what he is doing is either wrong or contrary to law. From a perusal of the decision reproduced above, the standard to be applied in considering what is "unsoundness of mind" is as to whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. There being no definition of "unsoundness of mind" in IPC, the Courts have mainly treated this expression as equivalent to insanity but, the term "insanity" also having no precise definition, it has been used to describe varying degrees of mental disorder.34 Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim In other words, every person having mental disorder is not by that reason alone is exempted from criminal responsibility but that it would be essential to distinguish between legal insanity and medical insanity and that the Court is concerned with the former kind of insanity. That the burden of proof by application of 105 of the Indian Evidence Act, 1872, is on the Appellant by preponderance of probabilities that he had committed the offence by reason of unsoundness of mind due to which he was incapable of knowing the nature of the act. In the background of this position of law, we may proceed to consider the facts of the present case.
(iii) The evidence relied upon by the Appellant with regard to unsoundness of his mind are that of P.Ws 1, 2, 3, 4, 5, 8, 10, 11, 18 and 19. The Learned Senior Counsel for the Appellant emphasised on the fact that the Appellant on his own had driven to the State Jail taking along with him two minor children in the back seat of the taxi van and had declared to the Jail and Police personnel there that he had murdered his wife and that he should be put in jail. This submission is based upon the evidence of P.W.1 who was a SAP personnel on guard at the main gate 35 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim of the State Jail, P.W.5, the Sub-Inspector at the Sadar Police Station who was informed by P.W.1 that the Appellant had gone to the gate of the State Jail and had made such declaration. P.W.7, the Jailor who was informed by his subordinate P.W.8 of the same fact and P.W.8, the Assistant Sub-Jailor who informed P.W.7 that the SAP guard, P.W.1, on duty at the main gate had informed him of the Appellant declaring that he had killed his wife and he was accompanied by his two minor children. As per the Learned Senior Counsel, the act of the Appellant in going to the jail instead of the Police Station and making such declaration was not such as a normal person of prudence would not have done. This, as per him, clearly revealed the unsoundness of mind which the Appellant was suffering from. We are not convinced by these arguments. In Elevarasan (supra) it has been held as under:-
"38. So, also the fact that he had not escaped from the place of occurrence was no reason by itself to declare him to be a person of unsound mind incapable of understanding the nature of the acts committed by him. Experience has shown that different individuals react differently to same or similar situations. Some may escape from the scene of occurrence, others may not while some may even walk to the police station to surrender and report about what they have done. Such post-event conduct may be relevant to determine the culpability of the 36 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim offender in the light of other evidence on record, but the conduct of not fleeing from the spot would not in itself show that the person concerned was insane at the time of the commission of the offence."
(iv) Following from the above, the conduct of the Appellant would rather be relevant to determine the culpability of the Appellant in the light of the other evidence on record. The sole reason that he went to the jail instead of the Police Station and that he made the declaration as stated above would not by itself be indicative of the fact that the person was insane at the time of commission of the offence. In our view, from the facts that we shall deal later, would in fact indicate that the Appellant had deliberately gone with the intention to declare his offence.
(v) To impress upon us that the Appellant as being mentally deranged at the time when he committed the offence, reliance was placed upon the evidence of P.W.2, the landlord in whose house the Appellant was a tenant, P.W.4, the son of P.W.2, P.W.10, a family friend and P.W.11, a relative of the Appellant. In their evidence, we find that the Appellant was found was acting abnormally in the night preceding the incident. As per P.W.4, it was at 37 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim about 9 p.m. that the Appellant was found screaming outside and behaving like an insane person. These are the only evidence which have been stressed upon as proof of the Appellant having been in an unsound condition of mind. The question that falls for our consideration is that would these instances be sufficient to prove legal insanity? In our view, having regard to the fact that the Appellant did not have a history of insanity, it would not. At best, these would demonstrate stray instances of abnormal or queer behaviour exhibited by the Appellant but certainly not sufficient to attract the application of 84 IPC.
(vi) The evidence of other witnesses, more particularly, P.W.2, the landlord and P.W.4, his son and P.W.3, his neighbour, do not disclose any incident of odd circumstances prevailing in the household of the Appellant during or the period prior to the date of incident, except for the one when the Appellant was found screaming on the road in the night. P.W.6, the owner of the Maruti taxi van who had employed the Appellant for a period of about one year prior to the date of incident and P.W.12, owner of Pick-Up Utility for which the Appellant was employed to drive before that, have not at all stated that the Appellant 38 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim was mentally unsound. In fact, it has categorically come in the evidence of P.W.12 that the Appellant was mentally fit contrary to the plea of the Appellant. The fact that these two owners had given the Appellant dominion over their vehicles which by no means are valuable properties, clearly leads us to infer that there was nothing wrong with the Appellant during the period prior to the date of the incident.
(vii) As observed by us earlier, the Learned Senior Counsel, no doubt referred to the records of the Learned Trial Court and submitted that the proceedings clearly reflected that the Appellant was of unsound mind which established that the Appellant was suffering from legal insanity at the time when he committed the offence.
(viii) We have gone to the records placed before us. The incident unfortunate admittedly took place in the intervening night of 06-12-2008 and 07-12-2008. He was produced for the first time before the Learned Trial Court on 12-02-2009 after the committal proceedings and thereafter produced at least 9 times on various dates for remand until 06-06-2009. During the entire period 39 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim covering all these dates, the Appellant had never pleaded insanity. It may be relevant to note that on 27-04-2009, the Appellant was represented by Shri N. Rai, Learned Advocate as the Legal Aid Counsel but we find that it was only on 19-06-2009 that prayer was made for referring the Appellant to the Hospital to find out as to whether the Appellant was in a position to understand the Court proceedings as he appeared to be of unsound mind. On 30-07-2009, we find that the Learned Trial Court has recorded that Dr. C. L. Pradhan, Neuropsychiatrist, STNM Hospital, Gangtok, had opined that the Appellant would be able to understand the Court proceedings but he required continuous medication. However, as the Appellant was found to be abnormal, a fresh report was sought for from the Psychiatrist and, on the next date, i.e., 13-08-2009, the report was received from the Psychiatrist that the Appellant had shown significant insight, judgment and knew about his illness and that he could face trial. Thereafter, the trial proceeded until 28-10-2010 when the Learned Counsel for the Appellant again prayed that the Appellant be forwarded for psychiatric examination to find out as to whether he was fit to understand the Court 40 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim proceedings or not. It was accordingly directed that the Appellant be sent for examination by Psychiatrist as prayed for on his behalf. On 10-11-2010, it was reported by the Neuro-Psychiatrist that the Appellant was suffering from schizophrenia and had not developed full insight and that he was not able to understand the Court proceedings. Accordingly, further proceedings of the case was postponed until 25-02-2011 on which day the Neuropsychiatrist reported that the Appellant was fit to face the Court proceedings. The trial was thus resumed until its culmination on the pronouncement of the impugned judgment.
(ix) In our view, the abnormal condition of the Appellant was noticed only in June, 2009, while the offence was committed in December, 2008 and, thereafter until 28-10-2010 the Appellant appeared normal. On 25- 02-2011 also the Court did not notice anything unusual in the behaviour of the Appellant. From the above, it is evident that the Appellant was not suffering from mental insanity before, at the time and sometimes after the commission of the offence. In fact, it has come in the evidence of his close relative, the brother-in-law, P.W.9, 41 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim father-in-law, P.W.14 and mother-in-law, P.W.15, that there was nothing unusual in the mental condition of the Appellant and no history of his mental disorder could be traced. It has also come in their evidence that they were living in Gangtok until the morning of the incident when they were to leave for Nepal and that during their stay there, the Appellant and his deceased wife used to visit them often. Such being the evidence, it is difficult for us to infer that the Appellant was insane at the time of the incident or at any time before that.
(x) We also find from the out-patient cards, Exhibits 18 and 19, that during the period of investigation of the case the Appellant had been sent for medical examination at least 3 times, i.e., on 07-12-2008, the date of the incident, on 09-12-2008 and on 11-12-2008. But, on all those three dates the doctors examining him did not appear to have noticed abnormality in the mental condition of the Appellant. Mr. Rai would submit that the I.O., P.W.18, had failed to take the appropriate steps of forwarding the Appellant for medical examination during the investigation as it was admitted by him in his evidence that various witnesses had stated about the insanity of the 42 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim Appellant. He pointed out that the I.O., when confronted with the portions of the statements of P.W. Ramesh Chouwdary, P.W.3, Mohan Gurung, P.W.10, Chandan Sundas and P.W.11, S. K. Sundas recorded under Section 161 Cr.P.C. marked Exhibits 'A', 'B', 'C' and 'D' respective, had admitted that those were indeed stated by them. We are unable to be impressed by this submission as firstly, we find that when Ramesh Chouwdary was dropped by the prosecution during the trial, the Appellant had not taken steps to examine him. Secondly, Section 145 of the Evidence Act contemplates that "A witness may be cross- examined as to previous statements made by him ..................".
(xi) Therefore, the Appellant ought to have confronted the maker of the statements, i.e., P.Ws Ramesh Chouwdary, 3, 10 and 11, which the Appellant obviously has not done. Confronting the I.O. would be of no consequence. On the other hand, the I.O. in his evidence has unequivocally stated that "I did not send the accused to any psychiatrist for his mental evaluation as he was not having any sign of mental illness".
Under these circumstances, the contention of Mr. Rai does not appear to hold good.
43Crl.A. No.14 of 2013
Narad Pariyar @ Navin vs. State of Sikkim
(xii) On the absence of motive in committing the offence by the Appellant as one of the circumstances repelling the absence of insanity contended by Mr. Rai, in our view, would also fail in the face of the eminently glaring evidence appearing in the depositions of P.Ws 9, 14 and 15. P.W.9 and P.W.15 who are the brother-in-law and mother-in-law respectively of the Appellant have disclosed that the Appellant used to suspect the fidelity of his deceased wife because of which they used to have frequent "problem/quarrel" and the Appellant used to beat the deceased wife. This fact stands corroborated by the evidence of P.W.13, LNK Bhoj Kumar Pradhan, posted at Tadong Out Post, who has stated that on 08-08-2007 the Appellant had made a report at the Out Post with regard to a family problem with his in-laws which he had recorded in the general diary. The evidence of these witnesses unerringly leads us to conclude that all was not well between the Appellant and his deceased wife and her parents.
(xiii) As to what had transpired between the Appellant and his wife leading the Appellant to murder her is a mystery as it happened in the dead of the night within the 44 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim confines of their home but we find that the circumstance as revealed from the evidence of P.Ws 9, 14 and 15 confronts the Appellant formidably.
(xiv) The next circumstance that reinforces the same disposition of the Appellant is the fact that the Appellant had taken all precautions not to injure his two minor children and in fact, had taken them along with him unharmed to the gate of the State Jail. The sequence of events thus far and the established circumstances as revealed from the discussions belies the plea of insanity taken by the Appellant for seeking protection under Section 84 IPC.
(xv) We have also considered the alternative plea taken by Mr. Rai but, the facts and circumstances discussed above and the medical evidence rendered by Medico Legal Expert, P.W.16 and the Medico Autopsy Report, Exhibit 11, indubitably leads us to conclude that the act of the Appellant in assaulting his wife was deliberate with the intent to kill. The medical report clearly reveals 14 injuries as pointed out by the Learned Additional Public Prosecutor and two of them were fatal caused by sharp aged weapon. Most of the injuries were 45 Crl.A. No.14 of 2013 Narad Pariyar @ Navin vs. State of Sikkim inflicted on the neck and face area of the deceased. In our view, these do not fall within the purview of either Part I or Part II of Section 304 IPC but squarely under Section 302 IPC.
(xvi) The decisions cited by Mr. Rai in support of his contentions lay down the well-settled principles of law but, those will have no application in the facts and circumstances of the present case.
(xvii) For all these reasons, we are of the firm view that the Appellant has failed to discharge his burden of proof placed by him under the law and the Appeal has to fail.
8. In the result, the Appeal is dismissed.
9. No order as to costs.
10. A copy of this judgment and the original case records be transmitted to the Court of the Learned Sessions Judge, Special Division - II, East Sikkim at Gangtok, for its record.
( S. P. Wangdi ) (S. K. Sinha )
Judge Judge
27-08-2014 27-08-2014