Rajasthan High Court - Jodhpur
Sawai Singh vs State on 3 January, 2020
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Criminal Appeal No. 632/2010
Sawai Singh son of Gulab Singh, by caste Rajput, aged about 47
years, resident of Bera Gangajal, Nimbali, Police Station Siriyari,
Tehsil Marwar Junction, District Pali
(Lodged in District Jail, Pali)
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. R.K. Charan
For Respondent(s) : Mr. N.S. Bhati, P.P.
Mr. P.S. Rathore
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
Judgment
Date of pronouncement : 03/01/2020
Judgment reserved on : 04/09/2019
BY THE COURT : PER HON'BLE MEHTA, J.
1. The instant appeal under Section 374 (2) has been preferred by the appellant Sawai Singh S/o Gulab Singh being aggrieved of the judgment dated 25.11.2010 passed by the learned Additional Sessions Judge (Fast Track) No.2, Pali in Sessions Case No.45/2008, whereby he has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment alongwith a fine of Rs.10,000/- and in default of payment of fine, further to undergo additional simple imprisonment of six months. (Downloaded on 03/01/2020 at 08:30:04 PM)
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2. Though the instant appeal was filed as a represented appeal, but during the pendency thereof, the counsel representing the appellant pleaded no instructions, whereupon, the accused was summoned from prison by order dated 06.08.2019, and in his presence, Mr. R.K. Charan, Advocate, who offered his pro bono services, was appointed as Amicus Curiae to represent the appellant. A copy of the paperbook was provided to Mr. Charan.
3. Brief facts relevant and essential for decision of the appeal are noted hereinbelow. Kan Singh (P.W.4), resident of Bera Gangajal Nimbli submitted a written report (Ex.P/5) to the SHO, Police Station Siriyari, Tehsil Marwar Junction, District Pali on 07.09.2008 at 11.30 a.m. at the place of the incident alleging inter alia that on the same day at about 07.30 a.m., he had gone out of the house to attend the call of nature. Behind him, his wife, daughters and his son Manvendra Singh were present in the house. Manvendra Singh was taking bath at the common well outside his house. While the complainant was returning back his house after having eased himself, he heard hue and cry being raised from his house. He rushed there and when he reached near the well, he saw his wife crying. On enquiry, his wife told him that Manvendra was taking bath near the well, when the neighbour Sawai Singh S/o Gulab Singh, by caste Rajpoot, resident of Bera Gangajal, Nimbli came around and started dragging Manvendra, who shouted for help. His mother Paras Kanwar (Downloaded on 03/01/2020 at 08:30:04 PM) (3 of 13) [CRLA-632/2010] (wife of the complainant) and her sister-in-law (Jethani) Bhanwar Kanwar W/o Nawal Singh, both ran out from their houses towards Manvendra Singh. Before they could make any attempt of saving Manvendra, Sawai Singh lifted the child with his hands and threw him in the well with the intention of killing him. Manvendra was still inside the well. The complainant called for the neighbours, upon which, Sohan Singh, Nawal Singh and Sher Singh etc. came around and took Manvendra out of the well with the help of a rope, but by that time, he had expired.
4. On the basis of the report aforesaid, an FIR No.140/2008 came to be registered at the Police Station Siriyari for the offence under Section 302 IPC. The accused appellant was arrested; the relevant investigation was carried out and thereafter, a charge-sheet came to be filed against the accused in the court of the Judicial Magistrate (First Class), Marwar Junction for the offence under Section 302 IPC. Since the offence was Sessions triable, the case was committed and transferred to the court of Additional Sessions Judge (Fast Track) No.2, Pali.
5. The learned trial court framed charge against the accused for the above offence, who pleaded not guilty and claimed trial. (Downloaded on 03/01/2020 at 08:30:04 PM)
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6. The prosecution examined as many as 17 witnesses and exhibited 16 documents so as to prove its case. The accused Sawai Singh was examined under Section 313 CrPC and when confronted with the circumstances appearing against him in the prosecution evidence, he denied the same and claimed to be innocent and took a pertinent plea that he was ill on the date of incident and was not in a position to move. Manvendra probably fell down in the well because of being pushed by an animal. 10 witnesses were examined and 12 documents were proved by the defence, which took a pertinent plea that the accused was suffering form insanity at the time of the incident.
7. After hearing the arguments advanced at bar by learned counsel for the parties and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence, this appeal.
8. Mr. Charan, learned Amicus Curiae representing the appellant, did candidly concede the fact that from the evidence of the material prosecution witnesses, it has been well and fully established that the accused did throw deceased Manvendra into the well causing his death. Despite this candid concession by Mr. Charan, we have closely scrutinized the evidence of the material prosecution witnesses Sohan Singh (P.W.1), the first witness and eye- (Downloaded on 03/01/2020 at 08:30:04 PM)
(5 of 13) [CRLA-632/2010] witnesses Paras Kanwar (P.W.2), mother of the deceased, Bhanwar Kanwar (P.W.4), aunt of the deceased, and Braj Kanwar (P.W.11) and find that all these witnesses, despite lengthy cross-examination stuck to their version that the accused appellant was responsible for throwing the 12 years old boy Manvendra Singh into the well and causing his death. Dr. Nihal Singh (P.W.8) conducted postmortem upon the body of Manvendra Singh and gave an opinion that the cause of death of the boy was asphyxia due to drowning in fresh water. He proved the postmortem report as Ex.P/13. Therefore, the allegation of the material witnesses is thoroughly corroborated by the evidence of the medical officer as well.
9. The sole contention of Mr. Charan so as to assail the impugned judgment was that the trial is vitiated and the accused appellant is entitled to be extended the benefit of defence of insanity as provided under Section 84 IPC. As per him, the defence well and truly proved the fact that the accused was suffering from insanity when the offence was committed. He urged that there was no motive for the accused to have murdered the young boy and that the offending act was committed under an impulse of insanity. In this regard, Mr. Charan drew the court's attention to the evidence of the defence witnesses Shyam Kanwar (D.W.1), Ganpat Singh (D.W.4), Ishwar Singh (D.W.5), Dr. Sanjay Gahlot (D.W.6), Associate Professor, Psychiatry Department, (Downloaded on 03/01/2020 at 08:30:04 PM) (6 of 13) [CRLA-632/2010] MDM Hospital, Jodhpur, Dr. Satyaprakash Aagiwal (D.W.7), Medical Officer, Bangad Government Hospital, Pali, Dr. Surendra Singh (D.W.8), Medical Officer, Government Primary Health Center, Jojawar, District Pali and Dr. Madan Lal Sarada, Medical Officer, Sojat City. He also referred to the medical certificates Ex.D/9, Ex.D/10, Ex.D/11 and Ex.D/12 and urged that from the evidence of the Medical Officers and the certificates proved by them, it is established beyond all manner of doubt that the appellant was suffering from a severe psychiatric ailment from the year 2005 onwards and was under constant treatment. He urged that even after being arrested, the appellant suffered from these very symptoms and had to be repeatedly taken to the MDM, Hospital, Jodhpur for treatment. Mr. Charan relied upon the this court's judgments in the cases of Geeg Singh Vs. The State of Rajasthan decided on 15.02.2008 and Rajendra Singh Vs. State of Rajasthan [2006 (4) RLW 3040] and urged that the appellant is entitled to be acquitted by giving him the benefit of the plea of insanity.
10. Learned Public Prosecutor, on the other hand, opposed the submissions advanced by Mr. Charan and contended that the ailment, with which the appellant was suffering, was not so serious that the benefit of the plea of legal insanity under Section 84 of the IPC can be extended to him. He, thus, implored the court to dismiss the appeal and affirm the conviction of the appellant.
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(7 of 13) [CRLA-632/2010] 11. We have given our thoughtful consideration to the
submissions advanced at bar and minutely re-appreciated the entire evidence available on record.
12. Since Mr. Charan has not disputed the fact that the accused threw the deceased boy into the well resulting into his death, we need not extensively analyze or evaluate the prosecution evidence in this regard. Despite that, we have briefly scrutinized the evidence and find that the evidence of the prosecution witnesses establishes beyond all manner of doubt that the accused was rightly held responsible for causing the death of the young boy Manvendra by pushing him into the well. However, it is equally true that the prosecution has not imputed any motive whatsoever to the appellant for committing the crime. Thus, the finding recorded by the trial court in this regard does not suffer from any error whatsoever. The only plea of Mr. Charan for assailing the appellant's conviction was that he was suffering from mental ailment from well before the incident and thus, the trial court ought to have stopped the trial by virtue of Section 329 of CrPC and that the accused is entitled to the benefit of Section 84 IPC providing for plea of legal insanity.
13. For appreciating in extenso, this aspect of the case, we perused the record threadbare. An application was filed by (Downloaded on 03/01/2020 at 08:30:04 PM) (8 of 13) [CRLA-632/2010] the appellant in the trial court on 13.01.2010 indicating the fact that he was suffering from some kind of mental ailment and that his treatment documents available at the Sub-Jail Sojat City be summoned. Alongwith the application, a prescription slip dated 09.09.2008 was annexed, in which it is clearly recorded that the accused Sawai Singh S/o Gulab Singh was suffering from uncontrollable activity etc. On the reverse of the slip, it is noted that the patient was a case of acute psychosis. It is our firm opinion that no sooner the application ws filed, the trial court ought to have adverted to the procedure provided under Section 329 CrPC. However, it appears that nothing of that sort was done. There are available on record the prescription slips of MDM Hospital, Jodhpur for the month of October 2008, which also indicate that the accused was suffering from psychiatric disease. To prove the fact that the accused was suffering from insanity, the evidence of defence witnesses Dr. Sanjay Gahlot (D.W.6), Associate Professor, Psychiatry Department, MDM Hospital, Jodhpur, Dr. Satyaprakash Aagiwal (D.W.7) and Dr. Madan Lal Sarada (D.W.10), Medical Officer, Sojat City needs to be scrutinized.
14. Dr. Madan Lal Sarada (D.W.10) stated that he used to treat the prisoners at the Sub-Jail, Sojat. On 09.09.2008, he was called in the jail for treating Sawai Singh. On examining him, the doctor realized that the accused was indulging in unexplainable activities and his body was going into (Downloaded on 03/01/2020 at 08:30:04 PM) (9 of 13) [CRLA-632/2010] uncontrollable movements, which could not be checked. On this, the doctor referred the prisoner to the physician.
15. Dr. Sanjay Gahlot (D.W.6), who was posted as Associate Professor, Psychiatry Department, MDM Hospital, Jodhpur stated that Sawai Singh was under his treatment from 22.10.2005 onwards. He examined him on 07.11.2005, 01.12.2005 and 24.06.2008. He was suffering from maniac disorder like symptoms. In cross-examination, the witness stated that considered in light of the symptoms noted in the prescription slip Ex.D/10 dated 24.06.2008, he could conclude that the patient having such symptoms would lose the power to think or decide what was good or bad. However, when he prepared the prescription slip Ex.D/9 dated 01.12.2005, the patient was in a position to think rationally. The doctor further admitted that when he prepared the prescription slip Ex.D/10, the symptoms of the patient were not acute. On over all appreciation of the evidence of this witness, we are duly satisfied that the psychiatric symptoms of Sawai Singh aggravated over a period of time. In the year 2005, the symptoms were not so severe, but his condition had definitely worsened by the year 2008.
16. Dr. Satyaprakash Aagiwal (D.W.7) examined the accused on 10.09.2008, i.e. just two days after the incident. He gave positive evidence to the effect that when he examined the (Downloaded on 03/01/2020 at 08:30:04 PM) (10 of 13) [CRLA-632/2010] patient Sawai Singh, he was suffering from aggravated psychiatric illness. He was provided treatment in the form of injections and medicines. No significant cross-examination was conducted from this witness by the learned Public Prosecutor.
17. From an over all appreciation of the evidence available on record, we are duly satisfied that the accused was undoubtedly suffering from acute/aggravated psychiatric ailment from the year 2005 onwards and well before the incident. The trial court was apprised of the mental ailment of the accused by way of an application in writing with supporting prescriptions etc., but no enquiry was made under Section 329 CrPC. The trial was continued without any pause and the finding of guilt was recorded against the accused. Section 84 of the IPC provides that nothing is an offence, which is done by a person, who at the time of doing it, by the 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. Therefore, if an offence is committed by a person in the state of unsoundness of mind, by effect whereof, he is not capable of understanding the nature or implication of the act or the consequence thereof, such act would not tantamount to be an offence. When trial of such a person, who is suffering from unsoundness of mind, is proposed and the procedure of Section 329 CrPC is not applied, it would have to be held that the accused has (Downloaded on 03/01/2020 at 08:30:04 PM) (11 of 13) [CRLA-632/2010] not been provided opportunity to put up his defence as per law. The situation presented in the case at hand is squarely covered by the mandate of Section 84 of the IPC. Undoubtedly and unquestionably the accused was suffering from unsoundness of mind right from the year 2005. The symptoms aggravated over the years and as such, it was imperative for the trial court to have stopped the trial by applying the mandate of Section 329 CrPC. However, this mandatory procedure was not adopted. The crucial fact to be examined by this court would be whether the accused was suffering from unsoundness of mind at the time of doing the act. As we have discussed above that from 22.10.2005 onwards till 24.06.2008, when the prescription slip Ex.D/10 was prepared, the accused was suffering from maniac disorder. His symptoms had aggravated over the course of time. Just after being lodged into the jail, the accused displayed marked symptoms of uncontrollable activity, on which, he was taken to the Government Hospital on 09.09.2008 and was opined to be a patient of acute psychosis. Therefore, it is firmly established that the accused was undoubtedly suffering from unsoundness of mind on the date of the incident. The defence evidence in the form of the statements of the concerned doctors, which we have discussed above, duly establishes that the accused was suffering from unsoundness of mind when the offence was committed. Therefore, and in the circumstances noticed above, we are of the firm opinion that the accused is entitled to the defence of plea of insanity provided by Section 84 of (Downloaded on 03/01/2020 at 08:30:04 PM) (12 of 13) [CRLA-632/2010] IPC. Our view is fortified by this court's judgment in the case of Geeg Singh (supra) and Rajendra Singh (supra).
18. In view of the above discussion, we are of the firm opinion that the learned trial court committed grave error in facts as well as in law while convicting the accused appellant by not adopting the procedure provided under Section 329 CrPC and not extending him the benefit of defence of insanity by virtue of Section 84 IPC.
19. Accordingly, the appeal deserves to be and is hereby allowed. The judgment dated 25.11.2010 passed by the learned Additional Sessions Judge (Fast Track) No.2, Pali in Sessions Case No.45/2008 is quashed and set aside. Appellant Sawai Singh S/o Gulab Singh is acquitted of all the charges. He is in custody. He shall be released forthwith, if not wanted in any other case.
20. Considering the fact that there is no evidence with us to be satisfied that the appellant has been cured of the mental ailment with which he was suffering at the time of the incident, we hereby direct that the Full Time Secretary, District Legal Services Authority, Pali shall appoint a competent para-legal volunteer so as to ensure that no harm is caused either to the accused himself or to any other member of his family or society after his release from prison (Downloaded on 03/01/2020 at 08:30:04 PM) (13 of 13) [CRLA-632/2010] because of the mental ailment. All possible medical assistance shall be provided to the accused so that he can be cured of the ailment.
21. However, keeping in view the provisions of Section 437-A CrPC, the acquitted accused appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
4-Pramod/-
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