Jharkhand High Court
State Of Jharkhand vs Lakhan Rai on 16 October, 2006
Equivalent citations: 2007(1)BLJR583, 2007CRILJ2410, 2007 CRI. L. J. 2410, 2007 (2) AIR JHAR R 4, (2008) 2 CURCRIR 285, (2007) 2 EASTCRIC 420
Author: Amareshwar Sahay
Bench: Amareshwar Sahay, R.K. Merathia
JUDGMENT Amareshwar Sahay, J.
Page 0584
1. The Death Reference as well as Criminal Appeal arises out of the judgment dated 24/06/2005 passed by the 3rd Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 60 of 2003 whereby the learned trial court convicted the appellant Lakhan Rai for the offence under Sections 302 and 307 IPC and awarded him the death sentence for the said offence.
The charge against the appellant was for committing the murder of his old lather mother, his wife, his three sons, his only daughter, his three nieces (brother's daughters) and also for causing serious injury on the person of his 4th niece (brother's daughter) who died after 21 days of the incident.
2. The case was initiated on the basis of the fardbeyan of Bigan Rai the cousin of the appellant (Phuphera brother) wherein he stated that the accused/appellant Lakhan Rai, who used to behave like insane person since last 2-3 years and he had undergone mental treatment twice at Ranchi. On 24/04/2002 at about 5.30 a.m. the wife of the younger brother of the appellant namely Madhuri Devi came to him weeping and told that the appellant has committed the murder of his wife, four children, father, mother and her three daughters and he has also seriously injured her youngest daughter inside the house. Upon this the informant and other villagers went to the house of the appellant, where the informant and the villagers saw the Page 0585 appellant standing in the courtyard having blood stained Farsa (Baluwa) in his hand and at that time he was wearing a Lungi having blood stains. On being asked he confessed before the witnesses that he has committed the murder of his children, mother, father and nieces. The informant and other villagers asked the appellant to throw away the Farsa but the appellant tried to flee away from the house but he was captured by the witnesses' alongwith 'Farsa'. The villagers entered into the house of the appellant and they saw the dead body of Parwati Devi, the wife of the appellant lying on a cot inside the room of the appellant. In the courtyard there were cots and the witnesses saw the dead bodies of Makrand aged about 10 years, on one cot and on the other cot they saw the dead bodies of Udai aged about 8 years, Dulari aged about 5 years, Chandan aged about 4 years all sons and daughter of the appellant Lakhan Rai and dead bodies of Rekha, aged about 8 years, Kanti aged about 5 years, Kajal aged about 3 years all daughters of Jairam Rai, brother of the appellant who all were murdered by cutting the neck through Baluwa (Farsa) while they were asleep. The informant further saw the dead body of Sonpati Devi aged about 55 years, mother of the appellant lying on ground in the courtyard. The informant further saw the dead body of Sanmukh Rai aged about 60 years, father of the appellant lying at the eastern door of the house of the appellant. The neck of all the above named persons had been cut by sharp cutting weapon and through which profuse blood was oozing and falling on the ground as well as on the bed and on the cot. One baby Puja aged about 1 1/2 years, daughter of Jairam Rai was lying in seriously injured condition on the cot. The appellant Lakhan Rai had made murderous attack on her with Farsa. Seeing the serious condition of the injured Puja, she sent a long with her mother Madhuri to Daltonganj for treatment. The informant further disclosed that the appellant had been exhibiting action like a mad man since last 2-3 years and he was living in loneliness and occasionally he used to go away from the house and to give no response on the call of any person. The appellant had been under treatment but in the last month his voice started trembling and hence he stopped taking medicines.
3. From the record of the lower court, it appears that the appellant had pleaded guilty at the time of charge but the learned trial court in the interest of justice put him on full trial.
In course of trial altogether 14 witnesses were examined out of whom, 13 witnesses were examined as PWs whereas 14th witness namely Madhuri Devi was examined as a court witness. In course of trial the informant Bigan Rai died.
4. PW-2 Indrajeet Rai, PW-4 Jagendra Rai, PW-5 Mahendra Rai, PW-6 Bhola Rai, PW-7 Kameshwar Rai, PW-8 Sumeshwar Rai, PW-9 Shyamdeo Paswan and Court witness No. 1 Madhuri Devi, who were all material charge-sheet witnesses turned hostile and they did not support the prosecution case.
5. PW-1 Gyan Prakash Singh, PW-3 Krishna Murari Sah, PW-10 Ranjan Kumar Singh and PW-11 Vijay Kumar Singh are the doctors, who held Post Mortem over the dead bodies. PW-13 Sunil Kumar is the doctor, who examined the injury on the person of the appellant Lakhan Rai. PW-12 Fozail Ahmad is the Investigating Officer.
6. From the trend of the cross-examination and from the statement of the appellant made under Section 313 Cr. P.C. it appears that the defence has taken the plea of insanity of the appellant while commission of the offence alleged.
Page 0586
7. The learned trial court by the impugned judgment held that though the defence had taken the plea of mental illness of the appellant but the same was not substantiated through cogent evidence and further that the mental illness has disclosed in the F.I.R. did not bring him under the category of a mad man. It was further held by the trial court that since the appellant gave a rational answer while being examined under Section 313 Cr.P.C. and, therefore, the plea of insanity taken by the appellant was rejected and, thereafter, on the basis of the evidence on record passed the impugned judgment of conviction and sentence against the appellant as already stated hereinabove.
8. For confirmation of the sentence of death punishment awarded by the trial court, the case has referred to this Court, which was registered as Death Reference No. 4 of 2005. Since no appeal against the conviction and sentence passed by the trial court was preferred by the convict Lakhan Rai and, therefore, this Court by order dated 30th January 2006 sent a letter to the convict Lakhan Rai intimating him that if he so desires he may file appeal against the judgment of conviction and sentence passed by the trial court. The said letter was served through the Superintendent, Central Jail, Hazaribagh, where the convict was detained after conviction. He was informed that if he was not in a position to engage a counsel of his choice then in that case the High Court Legal Services Authority may provide him a counsel.
9. Mr. Mahabir Prasad, Advocate was appointed as Amicus Curiae by this Court. Thereafter, an appeal from the jail was filed by the appellant against his conviction and sentence passed by the trial court, which was registered as Criminal Appeal No. 192 of 2006.
10. This Court constituted a Medical Board of the experts of RINPAS, Kanke, Ranchi, to examine the appellant Lakhan Rai and to submit a report regarding his mental condition. Consequently, the Medical Board constituted by this Court, examined the appellant and then has submitted a report. The report of the Medical Board is quoted hereinbelow in its entirety:
Medical Board report of Prisoner patient Sri Lakhan Rai Lakhan Rai, S/o Late Sanmukh Rai referred from Central Jail, Hazaribagh, admitted to RINPAS on 05th May 2006 by order of Jharkhand High Court for his mental state examination. No informant or any past medical documents are available.
Lakhan Rai, 35 years of age, Hindu married male from rural background of low socio-economic group. He is educated up to class V and is farmer by occupation.
At the time of admission he denied any complaints.
History:
He says that he was apparently well about 6 years back. At that time he was working in a Brick kiln and was staying there at night. One night at about 10 to 11 P.M. after finishing his work he went to his bend. While he was lying there he heard some voices coming from his home situated at some distance from kiln. He saw his wife standing there with a lantern. He became suspicious and thought what she is doing there in this late hours. After a while he went to his home. He sat outside for about half an hour. He heard his wife beating his son. When every thing became silent he knocked the door asking his mother to open it. After entering, he Page 0587 searched his house. He found a person lying on a bed. He on touching his feet found that he was Arbind, one of the villagers who frequently used to visit his home. He asked his mother about that person. His mother denied saying anybody had entered in this house. Meanwhile his wife also came there. She also denied. He along with his mother and wife went there. He saw there Arbind was hiding in a corner. Not saying anything to wife and mother he returned from there. Now he started accusing and abusing his wife and assaulted her with a stick. At that time he heard his mother asking help from Arbind to protect his wife. From that day he started relating events of the past with this event.
He remembered about his marriage, when his wife removed covering from her forehead while he was applying Sindoor to her. He remembered that people were saying that she was already married to may persons. He also remembered that one year back he cautioned his wife about Arbind and asked her to prohibit him from entering his house. All these things started disturbing him. He repeatedly started asking her of extramarital affairs. He was also asking his parents about that matter but everybody denied that his wife had illicit relations. He thought that probably all of them were united against him.
He says that once his wife told him that he is not father of any of his children. His mother refused to accept him as his son. He started, thinking that when everybody was against him then probably there was something wrong with him only. May he is not fulfilling needs of his wile. So he planned to kill himself. For this he once lied down on highway but was protected. Then he lied clown on railway track whole night but no train passed through that track that night. One day he jumped in a river but was saved from drowning by fishermen.
On seeing his behaviour he was brought to faith healer. He was consulted by doctors at Dehri and even in Kanke, Ranchi. Some medications were prescribed to hi. With medicines he showed improvement but due to trembling sensation and slurred voice (side-effects of medicies), he stopped taking it. (No medical record is available). Now he though what ever happened in the past was his mistake and he had to start his life once again. He started doing his daily routine work and was living a normal life.
Again after few months he started, feeling uneasiness and restlessness. One night he woke up and started shouting that snake was there. He started thinking why face of his wife is changing. In daytime she looks like someone else while in night her face was like someone other.
On the day of incident after having sexual intercourse with his wife he was sleepit. Suddeplg woke up at night. He was fearful, trembling and perspiring. He came out of his room; sat in an open space. He heard a voice saying, 'kill her', 'kill her'. He picked up a weapon (Balua) kept in his house. He went inside and hit his wife with that weapon. He hit her two to three times more. When satisfied he went outside. He saw his son sleeping. He hit him too. He found two of his daughter and one of his brother's daughters lying on the bed. He killed them too. Then he found Page 0588 his mother entering in the spot. He killed her also. After this his father entered there he throw that weapon towards him which cut his throat. Meanwhile his brother's wife saw all this and stalled shouting and ran away. Villagers gathered and climbed over the roof and started throwing tiles towards him. He heard some one asking him to run away. He escaped from the place with his weapon and hid himself at 'Devi Sthan' of the village. People gathered and restrained him and handed him over to police.
No history of fever, seizure, head injury, on ay chronic illness.
He occasionally used to take alcohol (country-made). In a year he hardly takes it once in a month or two. He occasionally used to take Cannabis only in some religious functions.
No family history of mental illness.
On mental status examination, He is of thin built, average nutrition, wearing hospital uniform. He is in touch with surroundings. Eye to eye contact present. Patient is cooperative, communicative. Normal psychomotor activity. Rapport established.
He is well oriented to time, place and persons.
Attention and concentration easily aroused and sustained.
Memory intact.
Intelligence proper.
Speech is normal.
He says that he can hear voices of people talking about him.
Authority hallucinations (3rd person) present He says in ward also people, used to talk about him.
Ideas of reference present.
Judgment impaired.
Affect is flat.
He has no insight of his illness.
On the basis of available evidence and mental state examination he is diagnosed as a case of Paranoid Schizophrenia (ICD-10 code F 20).
(underlining is mine).
11. On the basis of the above medical report of the appellant it appears that the appellant was diagnosed as a case of Paranoid Schizophrenia. The Medical experts have clearly stated in their report that the appellant was suffering from defects of reasons from the disease of the mind it the time of the alleged offence and such defects of reasons prevented him from knowing the nature and gravity of the act he was doing and further that he did not know that he was doing wrong.
12. Mr. Mahabir Prasad, learned Amicus Curiae submitted that the appellant was of unsound mind at the time of the alleged commission of the offence and in such state of unsoundness of mind he may have committed the alleged offence and, as such, he is entitled to be benefit of the exception of Section 84 of the Indian Penal Code and, therefore, the conviction and sentence passed by the trial court against the appellant cannot be sustained. He further submitted that the plea of insanity Page 0589 was raised by the appellant in course of trial but the learned trial court did not held enquiry as envisaged under Section 329 Cr. P.C. and, therefore, the whole trial has vitiated.
13. In order to test the submission of the learned Counsel appearing for the appellant it is necessary to notice the relevant provisions. Section 84 of the Indian Penal Code envisages as under:
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.
14. From perusal of the above quoted provisions of law it appears that to bring a crime under the exception of Section 84 I.P.C. the following essential ingredients, of Section 84 I.P.C. are to be fulfilled:
(a) The act must be done by a person who is incapable of knowing; (i) The nature of the act, or
(ii) That what he is doing is either wrong or contrary to law.
(b) Such incapacity must arise by reason of unsoundness of mind.
(c) Such incapacity must exist at the time of doing the act.
15. The object of Section 84 of the Indian Penal Code is that the fundamental principle of criminal law is that mensrea (guilty mind) is an essential element in every offence and no crime can be said to have been committed if the mind of the person doing the act is not guilty. But before applying the said principle of law the following things are to be borne in mind:
(a) Every type of insanity is not legal insanity.
(b) The court shall presume the absence of such insanity
(c) The burden of prove of legal insanity is on the accused, though is not as heavy as on the prosecution to prove an offence.
(d) The court must consider whether the accused suffer from legal insanity at the time when the offence was committed.
(e) In reaching such a conclusion, the circumstances, which preceded, attended or followed the crime, are relevant consideration, and
(f) The prosecution in discharging this burden in the face of the plea of legal insanity has merely to prove the basis fact and rely upon the normal presumption of law that everyone knows the law on the natural consequence of his act.
16. Reference in this regard may be had to the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujrat and to the case of Bhikhari v. State of Uttar Pradesh .
17. Section 329 of the Code of Criminal Procedure reads as under:
329 Procedure in case of person of unsound mind tried before Court- (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate, or Court, after considering such medical Page 0590 and other evidence as may be produced before him or it is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court.
18. From bare perusal of Section 329 Cr.P.C., it appears that it contemplates two stages of procedure. The first stage is that it must appear 10 the Magistrate or Court of Sessions that the accused was of unsound mind and consequently incapable of making defence. The second stage consists of an enquiry into the unsoundness of mind and, incapacity of the accused when the accused appears before the Court of Sessions appears to be of unsound mind or such a plea is raised before the trial then a preliminary enquiry, as to whether the accused is or is not capable of standing trial must be enquired first before proceeding any further.
In the present case it appears from the records of the trial court that the plea of insanity/unsoundness of mind of the appellant was raised before the trial court and the court for its satisfaction put several questions to the accused to which he answered fully and on being asked, the accused expressed that at present he was mentally fit and sound and he was fully understanding the facts and circumstances of the case. This fact appears from the order sheet of the trial court dated 23/12/2003.
19. In this view of the matter, in my view, the learned trial court made preliminary enquiry under Section 329 Cr.P.C. and then on being satisfied that the accused was mentally sound and fit to stand the trial and then he proceeded further and, therefore, the trial of the case did not vitiate on account of non-fulfillment of the requirement envisaged under Section 329 Cr.P.C.
20. The main point, which has to be considered in the present, appeal is as to whether the appellant was suffering from insanity or unsoundness of mind on the date and time when the alleged offence was committed by him and as to whether he is entitled to the benefit of exception of Section 84 of the Indian Penal Code.
21. In the case of Jai Lal v. Delhi Administration , the Supreme Court has held that to establish that the act done are not offence under Section 84, it must be proved clearly that at the time of the commission of the act, the appellant by reason of unsoundness of mind was incapable of either knowing that the acts were either morally wrong or contrary to law.
22. The question is whether the appellant was suffering from such incapacity at the time of commission of the acts. The Supreme Court in this case further held that on this question the state of his mind, before and after the crucial time is relevant, to be considered. If a person 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 he cannot be guilty of the criminal intent. Such a person lacks the requisite mensrea and is entitled to acquittal.
23 In this context it is also very relevant to notice the decision of the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujrat . The law laid down by the Supreme Court in this decision in this regard is extracted herein below:
Page 0591 It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian penal code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. The being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the effence itself. It may, for instnnre, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.
24. Keeping in mind the law on the subject noticed above, let us examine the evidence on record of the present case so as to come to the conclusion as to whether the crime committed by the appellant comes within the purview of Section 84 of the Indian Penal Code or not. As already, noticed herein above in the fardbeyan (F.I.R.) itself the informant has stated that the appellant was behaving like insane person since last 2-3 years and was living in loneliness. He occasionally used to go away from the house and he did not respond to the call of any person and he was undergoing treatment but since last month when his voice started trembling he stopped taking medicine.
25. The Investigating Officer PW-12 has also admitted in his evidence that the witnesses had stated before him that the accused was treated for mental illness and Page 0592 he used to flee away from his house occasionally. The Investigating Officer has also admitted in his evidence when he arrested the accused he was in the shocked slate of mind but he did not send him to mental hospital for investigation. The court witness No. 13 Madhuri Devi, in her evidence has also stated that her brother-in law, i.e. the appellant used to behave like a person of unsound mind.
26. There is no doubt that in the present case 11 innocent persons including 8 children have been murdered but the prime question is that us to for what reason and for which motive, the appellant killed his own kith and kins and close blood relatives. No sane person would kill his own father, mother, wife and innocent children of tender age without any strong and compelling reasons. In the present case the prosecution has not come forward to establish the motive behind the crime which alleged to have been committed by the present appellant. The allegation against the appellant is for commission of the crime of his own father, mother, wife, sons, daughter and nieces but there is complete absence of motive for the said murder. It is not the case of the prosecution that the appellant committed the alleged offence in a pre-planned manner. The medical report, which has already been quoted herein above, of the appellant, submitted by the Medical Board of three experts, shows that the appellant was suffering from Paranoid Schizophrenia even at the time of the commission of the alleged offence of murder and, therefore, it can very well be inferred from the facts and circumstances already discussed above that at the time of alleged commission of crime the appellant was suffering from Paranoid Schizophrenia, which is one of the kind of insanity and unsoundness of mind. The appellant was at that time incapable of knowing the nature of the act committed by him and was not understanding that what he was doing was wrong and contrary to law and such incapacity of the appellant was because he was of unsound mind at the time he was committing the crime. He was not having mensrea or guilty mind at that time. There was complete absence of motive for such a crime. In such a situation, the appellant is entitled to the benefit of Section 84 of the Indian Penal Code.
27. In view of my discussions and findings above, the appeal is hereby allowed and the impugned judgment of the learned trial court is hereby set aside. Since the appellant is required to be given proper treatment, as per the report of the Medical Board and, as such, the appellant is directed to be treated at RINPAS, Kanke, Ranchi as indoor patient at the cost of the State, The appellant be rerneved to the RINPAS, Kanke, Ranchi immediately for the said treathent. If after completion of treatment, RINPAS is of the opinion that release of Lakhan Rai will not be dangerous to the society and that there is not chance of relapse of any mental illness, it may inform this Court for passing appropriate order. Without the order of this Court, Lakhan Rai shall not be discharged by RINPAS.
The Death Reference is answered accordingly.
R.K. Merathia, J.
28. I agree.