Gauhati High Court
Bipul Modi vs The State Of Assam on 1 September, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal (J) No. 66 of 2015
Sri Bipul Modi alias Mudi
S/o Sri Balia Mudi,
R/o Latajuri Gaon,
P.S.- Borpathar
Assam. ............ Appellant
-Versus-
State of Assam & another ............ Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE N. CHAUDHURY
Advocate for the appellant : Mr. R Dev, Amicus Curiae
Advocate for the Respondents: Ms. S Jahan,
Additional Public Prosecutor, Assam
Mr. Khanindra Lahkar,
Advocate (R-2)
Date of hearing & Judgment: 01.09.2016
JUDGMENT & ORDER
(N. Chaudhury, J)
This appeal is directed against judgment and order dated 29.05.2015 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 194/2013 Page 1 of 16 Criminal Appeal (J) No. 66/2015 under section 302 of the IPC thereby convicting appellant under the same section of law and sentencing him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 1,000/-, in default, to suffer simple imprisonment for another one month.
2. The prosecution story is that one Dhaniram Mudi, as informant, filed an ejahar with Borpathar Police Station on 28.05.2013 informing that his aunt Chutumai Mudi accompanied by her grandson Krishna Mudi aged about 12 years came to his house to pay a social visit. Around 2 P.M. after having meal while Krishna Mudi was playing along with his nephew and niece within his campus, his younger brother, namely, Bipul Modi alias Mudi came and hacked on the back side of the head of Krishna Mudi with kopi dao. Krishna Mudi died instantly. Hearing hue and cry when family members of Dhaniram came out, the accused tried to flee away by throwing the dao but the people apprehended him. On receipt of this ejahar, Borpathar Police Station Case No. 96/2013 under section 302 of the IPC was registered and investigation was started.
3. Police visited the place of occurrence, prepared sketch map, recorded statements of witnesses, held inquest over the dead body and got post mortem examination done. After receipt of the post mortem, charge sheet No. 140/2013 was filed on 06.11.2013 in the Court of Sub-Divisional Judicial Magistrate (M), Dhansiri, Sarupathar who by his order dated 07.11.2013 committed the case to Sessions. Sessions Case No. 194/2013 was thereupon registered. The learned Sessions Judge framed charge against the appellant under section 302 of the IPC on 16.11.2013. The charge was read over and explained to the accused person when he pleaded not guilty and claimed to be tried.
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4. In course of hearing, prosecution examined as many as 9 witnesses including the Medical Officer and the Investigating Officer. As many as 7 documents were proved as exhibits which include medical report and the mental condition of the accused person. A court witness, Dr. Diganta Kr. Das, was examined under section 313 of the Code of Criminal Procedure. Having considered all these materials, the learned Sessions Judge held the accused guilty of committing murder of Krishna Mudi and consequently he was convicted under section 302 of the IPC. The learned Sessions Judge was of the view that plea of insanity taken by the accused person was not established and so the accused was not entitled to benefit under section 84 of the IPC. Accordingly, the accused was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 1,000/-, in default, to suffer simple imprisonment for one month more.
5. We have heard Mr. R Dev, learned Amicus Curiae for the appellant, Ms. S Jahan, learned Additional Public Prosecutor, Assam and Mr. K Lahkar, learned counsel for the respondent No. 2, informant. We have also perused the evidence on record and the entire lower court records, particularly, to examine the materials available in regard to plea of insanity of the accused person.
6. PW 1, Dhaniram Mudi, is the elder brother of the accused. He narrated the same story as stated in the ejahar. According to him, he was not at home at the time of incident. He was informed by his wife over telephone that the accused had dealt a blow on Krishna Mudi. He hurried to home and found that accused had already fled. The accused was chased and found ½ away from his house and he brought him and handed over to his father and then to police. In Page 3 of 16 Criminal Appeal (J) No. 66/2015 course of cross examination, he disclosed that accused is mentally ill and he was treated by a doctor about 10 (ten) months ago.
7. PW 2, Bishnu Mahanta, is a neighbour. He came to know that incident had taken place at about 1 P.M. from one Lakheswar Ghatowal. He being VDP Secretary, went to the place and found the accused tied up by the villagers. On being asked, accused confessed to have killed Krishna Mudi but he PW 2 could not say the reason for such murder. Police came and examined the dead body and he became the witness of the seizure list. Police also seized the dao lying at the place of occurrence. In course of cross examination, he disclosed that when he came, he did not find accused to punch anyone but he was only smiling.
8. PW 3, Sukram alias Bolia Mudi, is the maternal uncle of deceased Krishna Mudi. According to him, Krishna Mudi came around 2 P.M. on the same day to enjoy litchi. He was 12 years old. Accused Bipul Modi alias Mudi assaulted Krishna to death with a kopi dao. But he could not say as to why the accused had done so. He claimed to have assaulted the accused person thereafter with a stick and snatched the dao from him. Thereafter the accused fled away from there but PW 1, Dhaniram apprehended him and kept him tied till police took him away. The accused had dealt dao blow on the back side of the head of Krishna. In course of cross examination, he also admitted that the accused is also like a mad. The accused killed his nephew.
9. PW 4, Lakhan Das is not an eye witness. Having heard the commotion nearby he came to the place of occurrence and found that a small boy had been cut by the accused. He found accused Bipul Modi alias Mudi being kept tied in Page 4 of 16 Criminal Appeal (J) No. 66/2015 the cow shed and the dead body of the small boy was kept in the veranda. Police seized kopi dao and he became a witness of the seizure.
10. PW 5, Lakheswar Ghatowar, deposed that at the time of occurrence, he was working in the field. He heard that accused Bipul had cut his nephew and on receipt of this information he went to his house. Accused Bipul was kept tied with a rope in the cow shed. Dead body of Krishna Mudi was kept in the veranda and then police came. On being asked, the father of the accused replied that Krishna Mudi was taking litchi when the accused Bipul hacked him at his neck with a kopi dao. Police prepared inquest report whereas he signed as witness. In course of his cross examination, he specifically disclosed that during the period of incident, Bipul Modi alias Mudi was mentally ill.
11. PW 6, Gerson Kungkal, stated that he knew the informant Dhaniram Mudi. He also knew the deceased. At the time of occurrence, he was working at No. 2 Tengahola Gaon Panchayat. Dhaniram informed him over telephone that accused had hacked Krishna Mudi. He thereafter reached to the place of occurrence and found Bipul Modi alias Mudi kept tiedin the cow shed with a rope. Father of the accused informed that accused had killed Krishna Mudi. Then he informed the police over telephone and police came. Police examined the dead body and seized the dao. PW 6 became an eye witness to the seizure list.
12. PW 7, Ananda Hemrom, was working at the time of the incident. Father of the accused informed him that accused had hacked Krishna Mudi with a kopi dao. Dead body was kept in the veranda. Police came and prepared inquest report and made seizure of the dao which is Material Exhibit No. 1. He noticed a Page 5 of 16 Criminal Appeal (J) No. 66/2015 cut mark in the neck of Krishna Mudi. Exhibit 3 is the inquest report where he signed as witness.
13. Dr. Rajiv Phukan was examined as PW 8. He had held post mortem examination of the dead body and gave the report. He found the following injuries:-
"INJURIES:
One deep incised wound, size about 6 cm x 2 cm x bone depth is present at back just above the shoulder. Spinal bone separated at the site of injury. All other organs are found healthy.
All the changes are ante mortem in nature and post mortem examination was done within 24 to 36 hours of the time of the death of the deceased. The nature of the wound is grievous in nature and may lead to death of a small boy."
In his opinion, cause of death of the deceased was due to shock and haemorrhage as a result of injury sustained by the deceased. He proved the post mortem examination report as Exhibit 4 under his signature.
14. PW 9, Sanjib Kr. Das, was Officer In-charge of Borpathar Police Station at the relevant time. In course of his deposition, he narrated the steps taken by him while conducting the investigation and collecting evidence. He proved charge sheet as Exhibit 6 and offending weapon as Material Exhibit 1. Nothing significant came out from his cross examination.
15. It appears that one Dr. Diganta Kr. Das, a Senior Medical and Health Officer of Kushal Konwar Civil Hospital, Golaghat was examined as CW 1. He disclosed that on 29.05.2013 i.e. on the next day of the occurrence, he had examined accused Bipul Modi alias Mudi in connection with Borpathar P.S. Case No. 96/2013 under section 302 of the IPC and thereupon submitted Exhibit 7 report. In his opinion, the accused was having Florid Psychosis and at times Page 6 of 16 Criminal Appeal (J) No. 66/2015 became violent. He was advised medication to continue as per Advice Slip and to attend LGB Regional Institute of Mental Health, Tezpur for further management. This witness was asked by court as to whether during epileptic attack a patient can do anything purposefully and he replied that on such attack, patient's level of consciousness is altered and not normal and therefore, during that period a patient can do anything but purposeful activity is doubtful. Even in course of cross examination, he opined that the patient suffering from Psychosis at the time of examination.
16. On perusal of records, we find that after getting the accused examined by a Senior Medical and Health Officer within 24 hours of incident, there was yet another action taken by the prosecution for getting the accused examined by Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur. Records disclosed that the under trial prisoner Bipul Modi alias Mudi aged about 25 years, was sent along with escort from jail to Lokopriya Gopinath Bordoloi Regional Institute of Mental Health in connection with G.R. Case No. 162/2013 corresponding to Borpathar P.S. Case No. 96/2013 under section 302 of the IPC and this was done with due intimation to the Sub-Divisional Judicial Magistrate as well as the Deputy Commissioner, Golaghat. The report was given by the Medical Board of Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur on 06.06.2013 and the same is available on record. This report is quoted below for ready reference:-
"To whom it may concern This is to certify that Bipul Modi 25 years/ Male S/o Balia Modi from Golaghat is examine by me on 04/06/2013. Detail history could not collect as there is no proper attendant [Family member] is available. Mental status examination reveals - He is conscious, co-operative, speaks irrelevant. Delusion Page 7 of 16 Criminal Appeal (J) No. 66/2015 of persecution [done black magic by others] and Auditory Hallucination is present; with impaired judgment and insight.
Provisionally diagnosed as a case of Psychosis.
For detail evaluation he required admission in our institute.
Sd/- Illegible Sd/- Illegible Sd/- Illegible
Deptt. Of Phychiatry Supreintendent Senior Resident
LGBRIMH, Tezpur District Jail Deptt. Of Psychiatry
Assam Golaghat LGBRIMH, Tezpur
Assam."
17. In course of examination under section 313 of the Code of Criminal Procedure, the accused did not disclose any special information but claimed that he did not commit any murder of Krishna. He claimed to have been suffering from epilepsy and at the time of occurrence the deceased had attacked him. But he had seen the victim and is mother.
18. On perusal of the records, it appears that there is sufficient evidence on record to hold that it is accused Bipul Modi alias Mudi who had hacked a dao blow on the back side of the head of Krishna Mudi causing his death. Krishna Mudi was about 9/10 years of age at that time and there is no apparent reason as to why the accused could have committed his murder. But one thing is sure and certain that the insanity of the accused person was in the mind of the Investigating Officer at the very first moment of investigation. Accused was found smiling when PW 2 came to the place of occurrence immediately after the offence was committed. The accused did not make any attempt to escape from the scene. He threw dao at the courtyard wherefrom it was seized. It is PW 3 who was present when the incident had taken place and he assaulted the accused with a stick and claimed to have snatched the dao from him. It is only thereafter the accused fled from the place and was apprehended by one Page 8 of 16 Criminal Appeal (J) No. 66/2015 Dhaniram. Keeping note of these aspects, the investigation did not make any delay in getting the accused person immediately examined by a doctor. The occurrence had taken place at 2 P.M. of 28.05.2013 whereas within 24 hours the arrested accused person was taken to Dr. Diganta Kr. Das, CW 1 and he found that at that time the accused was suffering from Psychosis. Exhibit 7 is the medical report. On 06.06.2013 i.e. within a week from the date of occurrence, the accused was taken to Tezpur from Golaghat under police escort for examination by the specialist at Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur. The Board of Psychiatrists was of the opinion that he was suffering from Psychosis. He was conscious, cooperative but spoke irrelevant. There was delusion of persecution and was apprehending that others were doing black magic against him. He was suffering from Auditory Hallucination with impaired judgment and insight. Such view expressed by the Medical Board of Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur is in conformity with the evidence of CW 1, Dr. Diganta Kr. Das and his medical report Exhibit 7. Since insanity of the accused person was noted within 24 hours of the occurrence, we are of the view that it is a case of legally insanity and associated with medical insanity.
19. The question of medical insanity and the standard of proof in support of the plea of insanity came up for consideration before the Hon'ble Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563). It was held that prosecution is duty bound to prove commission of offence beyond reasonable doubt with requisite mens rea and this burden rests on the prosecution from beginning till the end of the trial. But there is a rebuttable Page 9 of 16 Criminal Appeal (J) No. 66/2015 presumption that accused was not insane when he committed the crime. The accused may rebut it by placing before the court all the relevant materials such as oral, documentary or circumstantial but the burden of proof upon him is no higher than that of which rests upon a party to civil proceedings, meaning thereby that the standard of proof is only preponderance of probability and not proof beyond reasonable doubt. Paragraph 5 of this judgment is quoted below for ready reference:-
"5. Before we address ourselves to the facts of the case and the findings arrived at by the High Court, it would be convenient to notice the relevant aspects of the law of the plea of insanity. At the outset let us consider the material provisions without reference to decided cases. The said provisions are:
INDIAN PENAL CODE Section 299 - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 84 - 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.
INDIAN EVIDENCE ACT Section 105 - When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Section 4 - "Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved.
Proved. - A fact is said to be "proved" when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.Page 10 of 16
Criminal Appeal (J) No. 66/2015 Disproved. - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
Section 101 - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
It is a 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 s. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as s. 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. This being in exception, under s. 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 s. 105 of the Evidence Act, read with the definition of "shall presume" in s. 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that 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 s. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in s. 299 of Page 11 of 16 Criminal Appeal (J) No. 66/2015 the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that even 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."
20. The aforesaid judgment has been followed by the Hon'ble Supreme Court in a catena of subsequent pronouncements including the case of Sudhakaran v. State of Kerala reported in 2011 CriLJ 292. In that case, the Hon'ble Supreme Court has taken note of the decision of the House of Lords in the case of R v. Daniel Mc Naughten wherein five questions were formulated by the House of Lords in regard to defence of insanity. These five questions have been discussed by the Hon'ble Supreme Court in the aforesaid case and paragraph 17 of the judgment contains a detailed discussion on this. Paragraph 17 of the aforesaid case is quoted below for ready reference:-
"17. The defence of insanity has been well known in the English Legal System for many centuries. In the earlier times, it was usually advanced as a justification for seeking pardon. Over a period of time, it was used as a complete defence to criminal liability in offences involving mens rea. It is also accepted that insanity in medical terms is distinguishable from legal insanity. In most cases, in India, the defence of insanity seems to be pleaded where the offender is said to be suffering from the disease of Schizophrenia. The plea taken in the present case was also that the appellant was suffering from "paranoid schizophrenia". The term has been defined in Modi's Medical Jurisprudence and Toxicology as follows:
Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than in females. The main characteristic of this illness is a well-elaborated delusional system in a personality that is otherwise well preserved. The delusions are of persecutory type. The true nature of this illness may go unrecognized for a long time because the personality is well preserved, and some of these paranoiacs may pass off as a social reformers or founders of queer pseudo- religious sects. The classical picture is rare and generally takes a chronic course.
Paranoid Schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sound or noises in the ears, but later change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some Page 12 of 16 Criminal Appeal (J) No. 66/2015 noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions.
The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, 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. Section 84 of the Indian Penal Code recognizes the defence of insanity. It is defined as under:
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.
A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a decision of the House of Lords rendered in the case of R. v. Daniel Mc Naughten [1843 RR 59: 8ER 718(HL)]. In that case, the House of Lords formulated the famous Mc Naughten Rules on the basis of the five questions, which had been referred to them with regard to the defence of insanity. The reference came to be made in a case where Mc Naughten was charged with the murder by shooting of Edward Drummond, who was the Pvt. Secretary of the then Prime Minister of England Sir Robert Peel. The accused Mc Naughten produced medical evidence to prove that, he was not, at the time of committing the act, in a sound state of mind. He claimed that he was suffering from an insane delusion that the Prime Minister was the only reason for all his problems. He had also claimed that as a result of the insane delusion, he mistook Drummond for the Prime Minister and committed his murder by shooting him. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The aforesaid verdict became the subject of debate in the House of Lords. Therefore, it was determined to take the opinion of all the judges on the law governing such cases. Five questions were subsequently put to the Law Lords. The questions as well as the answers delivered by Lord Chief Justice Tindal were as under:
Q.1 What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing a revenging some supposed grievance or injury, or of producing some public benefit?
Answer Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.Page 13 of 16
Criminal Appeal (J) No. 66/2015 Q.2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?
Q.3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?
Answers - to the second and third questions That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put as to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that everyone must be taken conclusively to know it without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.
Q.4. If a person under an insane delusion as to the existing facts commits and offence in consequence thereof, is he thereby excused? Answer The answer must, of course, depend on the nature of the delusion, but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self-defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
Q.5. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting Page 14 of 16 Criminal Appeal (J) No. 66/2015 contrary to law, or whether he was labouring under any and what delusion at the time?
Answer We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.
A comparison of answers to question No. 2 and 3 and the provision contained in Section 84 of the IPC would clearly indicate that the Section is modelled on the aforesaid answers."
21. Having considered the cross examination of PW 1, PW 3, PW 5 and CW 1 and also on consideration of Exhibit 7 as well as report of the Medical Board available on record, we are of the opinion that the accused has succeeded to establish by preponderance of probability that he was legally insane at the time of occurrence. He was haunted by the delusion that somebody has committed black magic on him and he dealt the blow. He was found to be psychotic within 24 hours by CW 1, Dr. Diganta Kr. Das and he continued to remain so for next one week when he was examined by the Medical Board on 06.06.2013. We have also ascertained from the Jail Authority that the accused has been in custody for about 3 years 6 months and he is still suffering from Epilepsy with seizure disorder and so he is under treatment as per advice of AMCH, Dibrugarh. In that view of the matter, we hold that the appellant is entitled to benefit of Section 84 of the IPC. Accordingly, the appeal stands allowed by setting aside his conviction and sentence passed by the impugned judgment and order.
22. The appellant has been suffering from unsoundness of mind and so in exercise of power under section 334 of the Code of Criminal Procedure, we acquit him from the charge under section 302 of the IPC and direct him to keep Page 15 of 16 Criminal Appeal (J) No. 66/2015 in safe custody of Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur for his medical treatment and for the period management decides. Inform the State Government accordingly for doing the needful.
JUDGE CHIEF JUSTICE
BiswaS
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