Bangalore District Court
State By vs Mohammad Musa Sha @ Tabrez on 27 May, 2020
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY [CCH-66]
PRESENT
SRI.SUBHASH SANKAD,
B.A.,LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 27th day of May, 2020
S.C.No.223/2019
COMPLAINANT/S:- STATE BY,
Hebbal Police station,
Bengaluru.
(By Public Prosecutor)
Vs.
ACCUSED:- MOHAMMAD MUSA SHA @ TABREZ
s/o late Mohammed Mamoon Sha,
Aged about 25 years,
R/at No.18/25, 7th 'A' Cross,
Near Sulthan Mazid,
Kanakanagar,
R.T. Nagar Post,
Bengaluru - 560 032.
(By Sri. ASL., Advocate)
Date of Commencement of 31.12.2017
offences
Date of report of offences 31.12.2017
Name of complainant Sri. K.R. Ravishankar, HC- 5714
Date of recording of 25.09.2019
evidence
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Date of closing of evidence 07.02.2020
Offence complained of U/s. 353, 332, 307 IPC.
Opinion of the judge Acquitted
****
JUDGMENT
This is a charge sheet submitted by Police Inspector, Hebbal police station against the accused for the offences punishable under Sections 353, 332, 307 IPC.
2. Facts of the case.-
Mr. K.R. Ravishankar, HC-5714, attached to Hebbal police station lodged first information before the Hebbal police station. On the basis of this information, crime No.327/2017 came to be registered for the offence punishable under Sections 353, 332, 307 IPC. The allegations made in the first information are that, on 30.12.2017 the first informant was deputed to the night duty as a driver in Hoysala-157 vehicle from 8.30 p.m., to 8.30 a.m., and he was discharging his duty 3 SC.No.223/2019 with ASI Basappa. On the same day night at about 9.30 hours he received message from control room-100, at CFS No.1333110 that there is a disturbance going on near house No.18-25, 7th 'A' Cross, Kanakanagar, Near Sulthan Mazid, and he was directed to go to the said place. Immediately, he along with ASI Basappa went to the place at about 9.45 hours, when they went to the place Spandana hospital vehicle was there in the place, and some of the people gathered there. They got to know that the accused has lotched the door from the inside since morning and he is not opening the door, the mother of the accused and his family members broke open the door and they entered the room, accused was sleeping on the bed, after seeing the accused sleeping his mother told the first informant and other police officials that, he is sleeping and after he has woke up they will take him to hospital. Thereafter, himself and other police officials were dispersing the people gathered therein. At that time the accused came outside the home with long chopper in his hand, and he came from home by 4 SC.No.223/2019 screaming in a loud voice and rotating the long chopper. Frightened mob started dispersing from the place. The first informant was standing just near the Hoysala -157 vehicle, suddenly accused came near him and blew the long on his neck thereby caused serious injury to him and deterred him from discharging his duty. It is further alleged that the accused has assaulted him with an intention to kill him and he has also deterred him. On the basis of this information, initially crime No.327/2017 was registered for the offence punishable under Sections 353, 332, 307 IPC, and after completion of the investigation charge sheet was submitted and after due compliance of Section 207 Cr.P.C., the case has been committed. After committal the case has been made over to this court for disposal. The accused has been secured, after hearing the counsel for accused the charges were framed for the offence punishable under Sections 353, 332, 307 IPC. The accused has denied the charges and claimed to be tried. After securing the case properties, the trial was conducted. 5
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3. In order to prove the guilt of the accused to the charges leveled against him, the prosecution has totally examined 9 witnesses as PW1 to PW9 out of 15 charge sheet witnesses and exhibited documents as Exs.P1 to 6 and MO.1- and 2 were marked. During the course of prosecution evidence, the defense has exhibited documents as Ex.D1 to 9. After completion of the prosecution evidence, the accused has been examined as required under Section 313 of Cr.P.C. The accused has denied the incriminating evidence and he has also given additional answer and the same has been recorded. However, he has not chosen to adduce any defense evidence. Thereafter, the case was posted for argument.
4. I have heard learned Public Prosecutor and learned defense counsel. The learned Public Prosecutor has argued that the offence that has been committed by the accused herein is serious in nature and victim is a police official, the accused has assaulted him with an intention to cause his death. He has 6 SC.No.223/2019 further submitted that fortunately the complainant has been taken to hospital immediately and he has been saved. By referring to the deposition of all the witnesses and exhibits, the learned Public Prosecutor has submitted that the oral evidence coupled with documentary evidence has proved the guilt of the accused beyond reasonable doubt and he prayed to convict the accused to the charges leveled against him.
5. Per contra, the learned defense counsel has argued that at the time of commission of the offence the accused was not of sound mind. He was not in a position to understand what he was doing. By relying on the deposition of the prosecution witnesses and the documents marked as 'D' series, he has submitted that the accused is mentally ill, he is suffering from mental disorder and he is undergoing treatment to the same mental disorder since 2015, and he was not knowing what happened at the time of incident. He has vehemently submitted that, the accused was not able to understand as to what was 7 SC.No.223/2019 happened at the relevant point of time, and the act which alleged to have been committed by him is not punishable in view of the unsoundness mind of the accused. With these submissions, he sought for acquittal of the accused.
6. Now, the points that arise for my consideration.-
1. Whether the prosecution proves beyond reasonable doubt that on 30.12.2017 night at about 10.00 p.m., PW2 and other officials went to the house of the accused, the accused assaulted him with long chopper thereby the accused has committed the offence punishable under Sections 353, 332 IPC?
2. Whether the prosecution proves beyond reasonable doubt that the accused assaulted PW2 with an intention to cause death of PW2 and with the knowledge that by his act he is going to cause the death of PW2 thereby the accused has committed the offence punishable under Section 307 IPC?
3. Whether the alleged act of the accused falls under the exception that is provided under Section 84 of the Indian Penal Code?
4. What Order?
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7. My findings on the above said points are as under.-
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per the final order
for the following
REASONS
8. Points No.1:- It is the case of the prosecution that on 30.12.2017 PW2 was deputed as a driver in Hoysala-157 vehicle for night duty from 8.30 p.m., to 8.30 a.m., he was discharging his duty with ASI Basappa, on the same day night at about 9.30 hours PW2 received message from control room- 100 at CFS No.1333110 that, the disturbance is going on near house No.18-25, 7th 'A' Cross, Kanakanagar, Near Sulthan Mazid. Immediately, he along with ASI Basappa went to the place at about 9.45 hours, when they went to the place Spandana hospital vehicle was there in the place and some of the people had gathered there. After going to the said place, they got to know that the accused has locked the door from inside and since morning he is not opening the door. It is 9 SC.No.223/2019 further stated that the mother of the accused and his family members broke open the door, when they entered the room accused was sleeping on the bed, after seeing the accused sleeping his mother told PW2 and other police officials that he is sleeping and after he has woke up they will take him to hospital. Thereafter, himself and other police officials were dispersing the people gathered therein. At that time the accused came from the home screaming in a loud voice with long chopper in his hand and by rotating the long chopper. Suddenly the accused came near PW2 and assaulted him on his neck thereby caused serious injury to him and deterred him from discharging his duty. It is further case of the prosecution that the accused has assaulted him with an intention to kill him and he has also deterred him.
9. In order to connect the guilt of the accused to the charges leveled against him, the prosecution has totally examined 9 witnesses as PW1 to PW9, out of 15 charge sheet 10 SC.No.223/2019 witnesses and exhibited documents as Exs.P1 to 6 and MO.1 and 2 were marked and closed its side. During the course of prosecution evidence, the defense has exhibited documents as Ex.D1 to 9.
10. In order to answer the points for consideration, it is the evidence of PW1 to 5 that is relevant. All these witnesses are the official witnesses. All the witnesses have consistently deposed about the incident and in their chief examination itself these prosecution witnesses have stated that when they went to the place Spandana hospital vehicle was parked near the house of the accused. Further, these witnesses have consistently stated that when all of them were dispersing the people gathered in the place, the accused came from the home screaming in loud voice with long chopper in his hand and by rotating the same came near the vehicle where PW4 was standing. Suddenly, accused assaulted PW4 -Ravishankar on his neck and caused serious injuries to him. Immediately, he 11 SC.No.223/2019 was taken to Bapist hospital there he was taken treatment.
11. Further, the prosecution has also examined Dr. P.M. Prakash, Medical Officer, Bapist hospital, Bengaluru as PW8. This witness has deposed that on 30.12.2017 night at about 12.45 p.m., one Mr. Ravishankar was brought to his hospital by one Mr.Anand with the alleged history of assault and he has examined the injured and he has found cut wound measuring 3 x 1 c.m. cut over the left side of the neck with mild bleeding and he was treated as OPD patient and he has given opinion about the nature of the injury as the said injury is simple in nature and he has issued certificate to this fact.
12. The prosecution has also examined pancha witnesses as PW6 and 7. These two witnesses have turned hostile to the case of the prosecution. Though, the learned Public Prosecutor has cross-examined these witnesses in length nothing supportive to the case of the prosecution could be elicited from the mouth of these witnesses. 12
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13. That the learned defense counsel has cross- examined PW1 to 5 in length. I have carefully gone through the cross-examination of these witnesses. Nowhere in the cross-examination the learned defense counsel has disputed the occurrence of the incident. The same suggestions were put to all these witnesses. The gist of the cross-examination of all these witnesses is that, when they went to the place they came to know that the accused is a mentally disorder person, this suggestion was denied by these witnesses. However, all these witnesses have stated that when they gone to the place vehicle of Spandana hospital was there in the place and hospital staff also there in the place and these witnesses have further stated that the mother of the accused and his family members told all of them that accused is sleeping after he woke up they will take him to the hospital. However, these witnesses have stated that they do not know that at the time of incident the accused was suffering from some mental disease.
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14. The careful perusal of the cross-examination of all these witnesses shows that the defense counsel has not disputed the occurrence of the incident and only thing he wanted to elicit is that, at the time of incident the accused was not mentally healthy person and he was suffering from mental disease.
15. Further, the prosecution has also examined PW9 Narasimhaiah. PW9 is the I.O. who registered the FIR and after conducting the investigation submitted the charge sheet before the committal court. He has deposed about the drawing of spot mahazar, recovery mahazar and receiving the medical certificate from the Bapist hospital.
16. This witness was also subjected to cross- examination by the defense counsel, even in the cross- examination of I.O. also the learned defense counsel has not disputed the occurrence of the incident. However, he wanted to elicit that accused was suffering from some mental illness. The 14 SC.No.223/2019 suggestion was put to this witness that he was having knowledge about the mental illness of the accused and he has not made any effrt to conduct investigation in that regard. This witness has stated that he never came to know that the accused was suffering from some mental disorder. The learned defense counsel has produced some documents i.e., medical report before the court to show that at the time of incident the accused was suffering from some mental disorder.
17. Apart from these official witnesses the prosecution has examined two more pancha witnesses as PW6 and 7. As I have stated herein above these witnesses have turned hostile. Inspite of unavailability of supporting evidence, the oral evidence coupled with medical evidence shows that the prosecution has proved the occurrence of the incident.
18. Now, keeping in view the defense raised by the defense, it would be necessary to ascertain as to whether the accused has committed the said act with an intention to cause 15 SC.No.223/2019 the death of PW2 and with a knowledge that by his act he is going to cause the death of PW2.
19. As I have discussed herein above the learned defense counsel has raised only defense that the accused was not of sound mind as on the date of incident. He has places reliance on the fact that when PW1 to 5 went to the place the vehicle of the Spandana hospital was there in front of his home and the staff of Spandana hospital was also there. According to him, the presence of Spandana hospital staff and the vehicle indicates that these Spandana hospital vehicle and staff had come to the place at the request of the mother of the accused to take him to the hospital. This fact has been admitted by all the prosecution witnesses.
20. Further, he has drawn the attention of the court at the deposition of PW1 to 5 that, the mother of the accused requested these witnesses to go back as the accused was sleeping after he woke up they will take him to the hospital. By 16 SC.No.223/2019 relying on these facts he has stated that the accused was not mentally sound at the time of incident and he was not able to understand what he was doing and consequence of his act. He has placed reliance on the document marked as 'D' series. These documents are the medical prescriptions issued by Spandana hospital. He referred Ex.D9 wherein it is reported that he is suffering from 'impulse control disorder'. These documents reveal that the accused is under treatment from 29.08.2015 to till today he is undergoing treatment. He has further stated that accused is an engineering graduate and he is a meritorious student. To substantiate this he has submitted the document at the time of recording the statement of accused under Section 313 Cr.P.C. and it is settled principles of law that if the accused produced his documents at his examination under Section 313 Cr.P.C., the court has to consider the same. These documents are the medical prescriptions and his educational certificates. The medical prescriptions shows that the accused is under treatment from 01.10.2015 and he was 17 SC.No.223/2019 given various treatment. Now also he is under treatment and all the medicines are given to cure mental abnormality and the medicines which is given to the accused persistently is 'decorate ER 500 mg' and this is the medicines which is given to the patient who are suffering from mental illness. All these documents indicate that the accused is suffering from mental disorder and he is undergoing treatment for the same.
21. Apart from these medical prescriptions he has produced his educational records. His educational records are the marks card issued by the Department of Pre-University, Bengaluru Institute of Technology, and Department of Computer Science and Engineering, and he has undergone several training programs, and he has participated in seminars. By relying on these documents the learned counsel for accused has submitted that the accused is meritorious student and he was an engineering graduate, on an ill fated day while he was traveling in train he was hit by a stone on his head, due to this 18 SC.No.223/2019 his nuro system has damaged and he has diagnosed with the illness characterized by headache, discomfort in head (sand rubbing sensation, fogines in head) anger outburst, acting out in response to anger by causing damage to the property and also tendency to harm others during the anger with disturbed bio socio occupation functioning though, this certificate is issued on 30.05.2018. However, this is based on the medical prescriptions from the year 2015.
22. Further, at the time of recording of 313 statement all the incriminating circumstance were read over to the accused, the accused has answered all the incriminating questions as ' I don't know' and some of the questions he has stated that ' I don't remember'. He has further stated that he does not remember any incident, frequently he get a sever headache now also he is not in position to recall the incident and he was not in a position to remember what happens in front of him. All these circumstance goes to show that the accused is suffering 19 SC.No.223/2019 from mental illness and it is settled principles of law that nothing is an offence which is done under some incapacity the incapacity that has been claimed by the accused is unsoundness mind of the accused as on the date of commission of the offence.
23. The counsel for accused has argued that since the accused was not of sound mind as on the date of incident his act falls under exception that is provided under Section 84 of the IPC. At this juncture, it is relevant to refer Section 84 of the IPC.
84. Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
Section 84 IPC makes it clear that
(a) The act must be done by a person
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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.
24. It is essential ingredient of Section 84 that the act must be done by a person who is incapable of knowing, the nature of the act, or that what he is doing is either wrong or contrary to law and such incapacity must arise by reason of unsoundness of mind and same was exist at the time of doing the act. Herein, in the case in hand also the material placed by the defense shows that the accused is under some mental incapacity and he was not in a position to understand what he is doing at the time doing act. Now, the question is 'whether the contention raised by the accused is credible and exemption that is provided under Section 84 is to be given to the accused'. 21
SC.No.223/2019 However, the burden is on the accused to prove that he was under some incapacity, the same is not as that of the prosecution. In this regard, I would like to rely upon the judgment passed by the Hon'ble Apex Court in Siddhapal Kamala Yadav Vs. State of Maharashtra, [2009 Cri.L.J. 372] wherein the Hon'ble Supreme Court has held that 'The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. 22
SC.No.223/2019 Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law.'
25. The above cited observation made by the Hon'ble Apex Court is applicable to the case in hand. At this juncture, I would like to mention here that, as could be seen from the evidence of PW1 to 5 it is clear that when they reach the house of the accused the vehicle of Spandana hospital was there and staff of Spandana hospital were also there in the place. Further, all these witnesses have categorically stated that the mother of the accused has told them to go back and they will take him to the hospital after he woke up. All these witnesses have stated that when they broke open the door the accused was sleeping. During the cross-examination PW9 has stated that he has not done investigation as to why the vehicle and staff of Spandana hospital were there in the place and why the mother of the accused had told his official to go back. This is crucial point which PW9 ought to have considered and he ought 23 SC.No.223/2019 to have done investigation in that regard. As it is observed by the Hon'ble Supreme Court in the aforesaid observation that, it is the duty of honest investigator where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place the evidence before the court. However, in the case in hand though, all the prosecution witnesses are the official witnesses and it is PW9 who has registered the FIR and recorded the statement of all the witnesses and conducted the investigation, and submitted the charge sheet, though, all the witnesses have stated that the Spandana hospital staff and vehicle were there in the place, he was not able to find out why the Spandana hospital staff were there in the place, there is no investigation in that regard and PW9 has pleaded ignorance about this fact.
26. The material placed on behalf of the accused goes to show that the accused was under some incapacity to 24 SC.No.223/2019 understand what has happened in front of him at the time of doing the act i.e., assault in the present case. Though, the onus of proving the insanity is on the accused, the burden of proving the insanity is not that heavy as it is on prosecution but is the same as one which the party in civil proceedings has to discharge. Here in the this case the burden has shifted on the accused to prove his insanity and the same is not as that of the prosecution. The material placed by the defense goes to show that the accused was under some incapacity, the accused was of an unsound mind and he was not able to understand the consequence of his act, and he was not able to understand nature of the act and he was doing at the time of commission of the act. With these reasoning, I hold that the accused cannot be found guilty of the charges levelled against him. Accordingly, I answer points No.1 & 2 in the 'Negative'.
27. Point No.3:- For the above reasons, I proceed to pass the following.-
25
SC.No.223/2019 ORDER Accused found not guilty for the offence punishable under Sections 353, 332, 307 IPC.
Acting under Section 235(1) of Cr.P.C., accused is acquitted for the offences punishable under Sections 353, 332, 307 IPC.
The bail bonds and surety bonds of accused shall stand cancelled.
Note:- MO.1 & MO.2 are ordered to be destroyed after the statutory period provided for appeal is over.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 27 th day of May, 2020) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:-
PW1 : S. Basappa 26 SC.No.223/2019 PW2 : Hanumantharayappa PW3 : Basavaraj Badiger PW4 : K.R. Ravishankar PW5 : Anand M PW6 : Raju PW7 : Firoz Khan PW8 : Dr. P.M. Prakash PW9 : Narasimhaiah LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION:- Ex.P1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P2 : Spot mahazar Ex.P3 : Panchanama Ex.P4 : Statement of PW7 Ex.P5 : Wound certificate Ex.P6 : FIR LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE:- Ex.D1 : Emergency consultation Exs.D2 to 7 : Prescriptions 27 SC.No.223/2019 Ex.D8 : Letter Ex.D9 : Case summary and discharge record LIST OF MATERIAL OBJECTS MARKED:- MO.1 : Long chopper MO.2 : Shirt (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.