Calcutta High Court (Appellete Side)
Dipankar Baidya vs The State Of West Bengal on 13 August, 2018
Author: Ravi Krishan Kapur
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. NO. 280 of 2015
Dipankar Baidya ...... Appellant
-vs-
The State of West Bengal.........Respondent
For the Appellant : Mr. Tapan Duttagupta
For the State : Ms. Anusua Sinha
Judgment on : 13/08/2018
Ravi Krishan Kapur, J.:
1. This appeal is directed against the judgment and order of conviction dated 20 March, 2009 and 23 March, 2009 passed by the Learned Additional District and Sessions Judge, F.T.C, North 24 Parganas in Sessions Trial No.03(11)/2007 arising out of Sessions Case No.28(5) of 2007 convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentencing the appellant to suffer life imprisonment and also pay a fine of Rs.5000.
2. The prosecution case in brief is that information was lodged by Sri Bishnupada Baidya, the son of the Bonochari Baidya (the deceased). The information disclosed that on 28 November, 2006 in the evening the appellant had gone out of his house for work. The deceased (his father) and his elder brother, Dipankar Baidya (the appellant) were at home. At around 10.30 P.M., when the complainant was returning home he was informed by his neighbour one Utpal Sarkar that the appellant has struck his father with an axe and as a result, thereof his father had succumbed to injuries. On reaching home, the complainant, found his father bleeding and lying in the room. The complainant also found the appellant with an axe in his hand. It was also stated in the complaint that for the last few days the appellant had been undergoing mental treatment.
3. Upon receipt of the complaint, the police investigated the case and submitted a charge sheet against the appellant. The case was committed to the Court of Sessions and thereafter transferred to the Additional Sessions Court for Trial and disposal. Subsequently, charges were framed under Section 302 of the IPC. The appellant pleaded not guilty and claimed to be tried.
4. In the course of the trial, the prosecution examined 12 witnesses. The defence did not produce any evidence. The accused was examined under Section 313 of the Cr.P.C. but declined to examine any witness in defence. In conclusion of the trial, by a judgment and order dated 20 March, 2009 and 23 March, 2009, the Trial Judge convicted and sentenced the appellant as morefully stated hereinabove.
5. Hence the present appeal.
6. Mr. Tapan Duttagupta Advocate appearing for the appellant strenuously argued that in convicting the appellant the Trial Court committed errors both in law and pertaining to the facts of the instant case. He argued that there was evidence which would substantiate the fact that the appellant was of unsound mind and the defence under Section 84 of the IPC was squarely applicable to him. He relied on the decision reported in (2006) 1 Calcutta Law Journal page 342 (Kamala Bhuniya vs. State of West Bengal) and the decision reported in (2007) 1 C.Cr.LR 550 (Sujit Manna vs. State of West Bengal). He submitted that in a case where the plea has been taken on behalf of the accused under Section 84 of the IPC, the court must examine with reference to the facts and evidence whether the prosecution at the initial stage had discharged the burden to establish that the accused person was capable of understanding and appreciating the acts done by him. It was the obligation of the prosecution to show there was mens rea of the accused and only when the prosecution had discharged the initial burden would the accused be called upon to improbalize the prosecution case. He further argued that the investigating agency was duty bound to ascertain the mental condition of the accused person and whether he was mentally capable of understanding the impact of the wrongful act done by him. He placed reliance on the evidence of Bishnupada Baidya being the complainant (PW-1) to show that he had clearly stated that his elder brother being the appellant was suffering from illness and would not talk to anybody. He further laid emphasis on the fact that the documents regarding treatment of the appellant had been seized by the police and that the appellant was under the treatment of one Dr. Goutam Saha. Non-examination of Dr. Saha or failure to produce the treatment papers would give rise to an adverse presumption against the prosecution case. According to the counsel appearing for the appellant, it was evident that this vital aspect of the case had been omitted. Moreover, there was no direct evidence of any of the witnesses to implicate the appellant.
7. Counsel for the prosecution strenuously argued that the obligation to prove the defence of insanity was on the appellant and the appellant had in the facts and circumstances of the case failed to discharge the burden. There was no medical evidence whatsoever adduced by the appellant to substantiate the case of insanity and/or of unsound mind. In the circumstances, according to him the Trial Court justifiably held that the appellant guilty of the offence under Section 302 of the IPC and rightly awarded the sentence of life imprisonment to the appellant.
8. Before addressing the issues which arise for consideration in the instant appeal it is essential to appreciate the evidence of the witnesses in this proceeding.
PW-1 (Bishnu Pada Baidya), is the brother of the accused and the de-facto complainant. He had categorically stated in his examination in chief that on the date of the incident he had left his house at about 6 PM and returned home at around 9.15 PM. On his way home, he had heard that his elder brother the appellant had killed his father. Upon hearing of his father's death he ran towards the house but he was not allowed to enter. Thereafter, police and reporters came to the village and they took him to the police station. At the police station, he saw the dead body of his father. He found the appellant in the lock-up at the police station. He identified his signature in the complaint which is marked as Exhibit-1. He also identified his signature on the carbon copy of the Inquest Report which was marked as Exbihit-2. He also identified his signature on the Arrest Memo which has been marked as Exhibit-3. He stated that his father was murdered inside the house and he identified the appellant. In cross-examination, he stated that the appellant was his elder brother and would work with his father. He further stated that the appellant was suffering from illness and would not talk to anybody. He was under the treatment of one Dr. Goutam Saha. He stated that the documents regarding the medical treatment of his elder brother had been seized by the police. He also admitted that he had not seen the incident personally.
PW-2 (Basudev Ghosh), is a neighbour. He deposed that he knew the appellant and he identified the appellant in Court. He had heard that the appellant had killed his father and upon hearing the news he had visited the house. At the home, he found the dead body of the deceased lying on the floor with bleeding injuries. At that time, he found the appellant sitting by the side of his father's dead body. Thereafter, he stated that the police had come to the home and taken the dead body to the police station. He had identified his signature in the carbon copy of the Inquest Report marked as Exhibit-2. In cross-examination, he categorically stated that he had not seen the incident. PW-3 (Nirmal Biswas), is a local resident. He deposed that he knew the appellant, however, he did not know the father of the appellant. On the date of the incident, he had gone to the house of the appellant and heard from the local people that the appellant had killed his father. In cross-examination, he deposed that he could not name the person from whom he had heard about the incident. He had no personal knowledge about the incident. PW-4 (Prasanta Mistry), is a neighbour. He deposed that he knew the appellant and his family members. On the date of the incident, he was studying in his house. Upon hearing hue and cries he had gone to the home of the appellant and there he found the appellant sitting on the bed and the dead body of the deceased lying on the floor in the house. He had transcribed the FIR as per the dictation of the police officer. It was signed by Bishnu Baidya (PW-1). He identified the signature in the inquest report which is marked as Exhibit 2. In cross-examination, he stated that he had not seen the incident. He further deposed that at the time of the incident the appellant was not in a position to talk.
PW-5 (Indrajit Gharami), is a neighbour. He deposed that he knew the appellant and his family members. He was at his house on the night of the incident. He had gone to the house of the appellant and through the window, he saw the deceased was lying on the floor with bleeding injuries. On arriving at the home of the appellant he found the appellant sitting by the side of his father. He further deposed that the door was bolted from inside at that time. Thereafter, he deposed that the police had arrived and knocked on the door and the appellant had surrendered himself to the police. He identified the appellant in Court. In cross-examination, he stated that he was a paint worker. He further stated that he generally returned home at about 8 PM to 9 PM. He stated that he did not say anything to the police regarding the incident. He further deposed that it was not a fact that the door of the house where the incident occurred was not bolted from the inside. PW-6 (Adrish Kumar Roy), is a neighbour. He deposed that he knew the appellant. He identified the appellant in the Court. On the day of the incident, he had heard hue and cries from the home of the appellant and had gone to their home. When he reached the home of the appellant he saw many persons. He saw through the window of the house that the appellant was sitting by the side of his father. He further deposed that the police had arrived at the home and taken the appellant into custody. In cross-examination, he deposed that he had not seen the incident personally. He could not say how many persons assembled at the home of the appellant. He identified the home of the neighbours. He stated that the mother of the appellant was alive. He further stated that the appellant had three brothers and the appellant was the eldest brother. He identified the signature and some articles including "the dao"
seized by the police.
PW-7 (Basudeb Haldar), is a neighbour and by occupation a printing labourer. He deposed that on the night of the incident he had heard hue and cries from the home of the appellant and had gone there. Upon reaching their home, he found the police and many other persons. The police had tied the dead body of the deceased in plastic and thereafter taken away the dead body. He did not find the appellant when he had gone to their home. There was no cross-examination of this witness.
PW-8 (Joyanta Mondal), was a student and a neighbour of the appellant. He deposed that on the night of the incident around one and a half years ago he heard the news of the death of the appellant's father and he had rushed to the house of the appellant. He further deposed that he found that the police had arrested the appellant from his house. He identified his signature to the Inquest Report. In cross-examination, he deposed that he had no personal knowledge about the incident.
PW-9 (Subhas Mitra), is a neighbour and a mason by profession. He knew the appellant and identified him in Court. At the time of the incident, he had heard a sound from the house of the appellant and had gone there. On his arrival, he saw through the window that the appellant was sitting with a "dao"
in his hand and his father was lying on the ground. Thereafter, he informed the local people. Subsequently, the police came and had taken away the dead body. He was a witness to the seizure list and he identified his signature. He stated that the appellant had three brothers and his parents would reside in the same house. He was not interrogated by the police on the date of the incident.
PW-10 (Jiban Krishna Ghosh). He deposed that he was posted with the Barasat Sadar Court lock-up Section. At the relevant point of time, he was posted at Barasat P.S. as an Assistant Sub-Inspector of Police. He had received the complaint from Bishnu Pada Baidya. He identified his endorsement regarding receipt of the complaint. He identified his signature in the FIR. In cross-examination, he deposed that he had no personal knowledge regarding the incident.
PW-11 (Prasun Kumar Kar). He deposed that he was posted at Barasat P.S. as a Sub-Inspector of Police at the relevant point of time. He was the Investigating Officer. During the investigation, he had collected the post- mortem report and recorded the statement of Utpal Sarkar, Subhas Chandra Mitra and Adrish Kumar Roy. He also stated that the first Investigating Officer one Debotosh Bhattacharjee had since expired. In cross-examination, he deposed that he could not collect the alamat which was seized by the first Investigating Officer. He did not send any article to the FSL for chemical examination. He only collected the post-mortem report and submitted a charge sheet against the appellant. He agreed with the fact that in the FIR it was mentioned that the accused was being treated for mental treatment. PW-12 (Dr. Sukamal Nag Chowdhury). He was posted with the Barasat District Hospital. He conducted the post-mortem examination on the deceased. He had detected that there was (i) sharp cut injury ½" length on the upper part of pina of the right ear (ii) one sharp cut wound 4" * 2" by bone- deep over the right parietal region lying 1" above the root of the right ear associated with protrusion of brain matter from the wound (iii) one sharp cut injury 3" * 1" by bone-deep one occipital region placed transversely associated with extrusion of brain matter to the wound (iv) one sharp cut wound 1 ½" * 1 ½" bone-deep on the vault of the skull anterior posteriorly placed associated with extrusion of the brain matter to the wound (v) one sharp cut wound 2" * ½" bone deep at the upper part of the frontal region in front of the injury No.2
(vi) one sharp cut wound 1" * ½" by bone deep over left side of frontal area. According to him the injuries of the deceased were homicidal in nature and caused by a sharp cutting weapon like "dao". He identified his signature on the post-mortem report which was marked as Exhibit-6.
9. The relevant provisions of law which arise for consideration in this case are extracted hereunder:
Indian Penal Code:
S.302. Punishment for murder. - Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
S.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.
Evidence Act:
S.4. - "May presume" - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"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.
"Conclusive proof" - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. "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.
"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.
S.101: Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts 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.
S.105. Burden of proving that case of accused comes within exception - 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.
10. It is fundamental to criminal jurisprudence that to commit a criminal offence, mens rea is an essential ingredient of the offence. For committing a crime, an intention and the act are both to be taken to be constituents of the crime. This principle is well encapsulated in the Latin maxim actus non facit reum nisi mens sit rea.
11. Section 84 gives statutory recognition to the defence of insanity, as developed by the common law of England, in the House of Lords decision, in the case of R. vs. Daniel Mc Naughten, commonly referred to as the Mc Naughten Rules. It is now well settled that under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or
(b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. Bapu alias Gujraj Singh vs. State of Rajasthan reported in (2007) 8 Supreme Court Cases 66.
12. The classic doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, (1964) 7 SCR 361: AIR 1964 SC 1563 "(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged." (emphasis supplied)
13. Section 84 of the IPC carves out an exception, 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. This onus is ordinarily on the accused, under Section 105 of the Evidence Act and is to be discharged on a preponderance of probability, as observed in Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495.
14. In the decision reported in Bhikari vs. State of U.P. (AIR 1966 SC
1) the Hon'ble Supreme Court explaining the above quoted passage in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat (Supra) held that "undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of the commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act 1872".
15. However, it is vital to appreciate that if from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh v. State of U.P., (1990) 3 SCC 190.
16. As has been held in Devidas Loka Rathod vs. State of Maharashtra reported in 2018 SCC OnLine SC 645 (at paragraphs 10 and 11).
"The law undoubtedly presumes that every person committing an offence is sane and liable for his acts, though in specified circumstances it may be rebuttable. Thus, it is obligatory for the prosecution to discharge the burden of proving whether the accused was capable and competent to comprehend, understand and appreciate the acts done by him.
17. I will now consider the materials on record in the light of the above propositions to determine whether the prosecution has been able to establish its case against the appellant.
18. In the present case, the conduct and behaviour of the accused were extraordinary. The case of the prosecution is that without any motive and whatsoever he killed his father. The evidence led by the prosecution indicates that after killing his father the appellant simply sat down next to the dead body and did not make any attempt to flee from the scene of offence or conceal himself or conceal the weapon. The FIR categorically stated that the appellant was undergoing mental treatment. Additionally, the entire medical papers had been seized by the investigating agency pertaining to the treatment of the appellant. Furthermore, in the cross-examination, of the complainant, it was categorically stated that the appellant was under the treatment of Dr. Goutam Saha. Notwithstanding these unassailable and indisputable facts, there was no effort on the part of the prosecution to dispel the grave doubt which arises in the mind of any reasonable person that the appellant may not have been in a fit state of mind to understand whether his act was wrong or contrary to law. The prosecution should have considered this extraordinary behaviour on the part of the accused and the latter's past medical history as meriting an investigation into the state of the appellant's mind at the time when he committed the alleged offence.
19. The decision reported in 1985 Cri LJ 1824 of the Hon'ble High Court at Andhra Pradesh, the decision of the Delhi High Court reported in 1968 Cri LJ 1156 and the decision of the Hon'ble High Court of Calcutta in (2006) 1 Cal LJ 342 support the proposition that in a case where the conduct of the accused in committing a crime demonstrates an abnormality, the prosecution should place before the Court some evidence to indicate that the accused was in a proper state of mind at the time he committed the alleged offence. I am of the view that in the facts and circumstances of the instant case it was the obligation of the prosecution to show that the accused was capable of understanding the impact of the wrongful act done by him.
20. Furthermore, the alleged "dao" (sharp cutting weapon) though seized by the police was never sent to the FSL for examination. None of the other seized articles like the wearing apparels of the accused, blood stains, napkin and the controlled earth were sent to the FSL for examination. The statement of the complainant and the neighbours (PW-1 to PW-9) was that they had heard from others that the appellant has committed the murder. It is axiomatic that defects in an investigation cannot whittle down the case of the prosecution if it's otherwise proved from the evidence on record that the appellant had committed the offence. However, it remains to be examined whether the prosecution on the evidence on record has proved beyond reasonable doubt that the appellant had indeed committed the offence. Admittedly, there were no eye witnesses to the alleged crime. Hence, the case of the prosecution rests completely on circumstantial evidence.
21. The failure of the prosecution to subject the accused to medical examination immediately and to place before the Court all the evidence which could be available has a serious consequence on the merits of the prosecution's case. In my view, this facts creates a serious infirmity in the case of the prosecution and raises a doubt whether the act or acts of violence were committed with the requisite intention of committing a particular offence. I am also of the view that on the basis of the evidence and the materials on the record a reasonable doubt had been created whether the accused had mens rea required for the offence. Consequently, the accused is entitled to the benefit of the doubt.
22. It is well settled that the absence of motive, whilst not conclusive by itself, is a factor to be taken into consideration along with the other circumstances. The prosecution must prove that the accused person had committed the offence with the requisite mens rea. Unless this burden is discharged by the prosecution it cannot ask for the conviction of the accused. It is essential to establish that the accused had cognitive understanding as to the consequences of his act. I am of the view that on the basis of the materials on record a reasonable doubt is created in the mind of the Court with regard to discharge of the initial burden on the prosecution that the appellant was in a proper state of mind and capable of understanding the impact of the acts done by him at the time of occurrence of the incident. I am of the view that the prosecution has failed to dispel the serious doubts of whether the appellant was in a fit state of mind to understand, appreciate and comprehend whether his acts were contrary to law or not. Accordingly, the appellant is entitled to the benefit of the doubt and consequent acquittal.
23. Accordingly, I find merit in the present appeal and hold that the Learned Judge was not justified in recording the order of conviction and sentence since the prosecution had failed to discharge its initial burden and proof beyond reasonable doubt that the accused-appellant had committed an offence under Section 302 of the IPC. I am of the view that the Trial Judge erred in proper appreciation and consideration of all such evidence raising doubts about the mental status of the appellant at the time of the commission of the offence. The prosecution had also not placed the necessary evidence before the Court but left the conviction of the appellant as a foregone conclusion.
24. I, therefore, allow this appeal and set aside the order of conviction and sentence. Since the appellant is not on bail, I direct the Superintendent/Correctional Home, where the appellant is detained, to release the appellant forthwith, if he is not wanted in connection with any other case. Send a copy of this judgment alongwith the Lower Court Records to the learned Court below for information.
25. The certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
I agree.
(Joymalya Bagchi, J.) (Ravi Krishan Kapur, J.)