Gauhati High Court
Amitabh Das vs The State Of Assam on 26 September, 2012
Author: I.A. Ansari
Bench: I.A. Ansari
1
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZORAM & ARUNACHAL PRADESH
CRIMINAL APPEAL NO. 147 (J) OF 2007
Amitabh Das ----- Accused-Appellant
-Versus-
The State of Assam ----- Respondent
BEFORE BEFORE THE HON'BLR MR.JUSTICE I.A. ANSARI THE HON'BLR MR.JUSTICE SC DAS For the appellant : Mr. BP Dutta, Amicus Curiae.
For the respondents : Mr. KA Mazumdar, Addl. Public Prosecutor, Assam.
Date of hearing : 19th of September, 2012
Date of judgment :
JUDGEMENT AND ORDER
{ IA Ansari, J }
This appeal is directed against the judgment and order, dated 13-06-2007, passed by the learned Sessions Judge, Goalpara, in Sessions Case No. 74 of 2005, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay a fine of Rs.3,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of three months.
2. The case of the prosecution, as surfaced at the trial, may, in brief, be described as under:
Smti Bhanumati Das was the mother of accused Amitabh Das alias Soni.
On 22-10-2001, at about 4.00 pm, on hearing hue and cry raised from the house of Bhanumati Das, PW2 (Dipali Das) and PW3 (Hiramaya Das), neighbors of Bhanumati, who were preparing to go to the house of their relative, rushed to the house of Bhanumati Das and, on entering into the house, PW2 saw accused 2 Amitabh Das giving blows by a sword on his mother, Bhanumati Das, and when PW2 tried to intervene, she, too, sustained cut injuries. Out of fear, she came out of the house and, then, not only PW2, but also PW3, who, too, had seen the occurrence, raised hullah, the neighbours assembled at the place of occurrence and the accused left his house. Injured Bhanumati Das was taken to Solace hospital, but she was declared dead. An Ejahar was lodged by Latika Choudhury (PW1), sister-in-law of the deceased, Bhanumati Das, alleging to the effect, inter alia, that the accused had hacked his mother, Bhanumati, to death by means of a sword. Based on the Ejahar, so lodged, and treating the same as the First Information Report (Ext.1), Goalpara Police Station Case No. 205 of 2001, under Section 302 IPC, was registered against the present accused-appellant. During investigation, inquest was held over the said dead body and Inquest Report (Ext.3) was prepared. Finding a sword inside the house, police seized the same by Seizure List (Ext.2), Bhanumati's dead body was subjected to post mortem examination and, on completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused-appellant.
3. At the trial, a charge was framed under Section 302 IPC. To the charge so framed against him, at the trial, the accused-appellant pleaded not guilty.
4. In support of their case, prosecution examined as many as 12 (twelve) witnesses. The accused was, then, examined under Section 313 Cr.P.C. In his examination aforementioned, the accused took the plea of insanity as his defence, the case of the defence being that the accused was a patient of schizophrenia and did not know what he had done, when he happened to hack his mother to death by means of sword. The defence, too, adduced evidence by examining three doctors.
5. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed 3 sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal.
6. We have heard Mr. BP Dutta, learned Amicus Curiae, and Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam.
7. While considering the present appeal, it needs to be noted that the doctor (PW10), who had, admittedly, conducted the post mortem examination on Bhanumati's dead body, found, according to his evidence, as follows:
"External appearance A dead body of a well-built woman aged approx .53 years with rigor mortis present all over the body. Her both eyes are closed with half open mouth. The body bears the following injuries:
1. A sharp cut injury over the left side of the face extending from the right angle of the mouth upto right eye. It has cut the maxilla including teeth. There are three lacerated injury over the left side of the face.
2. There are two leneay sharp cut injury from chest upto about 11"in length.
3. Two penetrating injuries are seen over the left side and the right side of the abdomen.
4. A penetrating injury is seen over the lower abdomen below umbilices.
5. A sharp cut injury size about 8cm is seen over scalp.
Cranium and spinal canal Skull is cut in occipital area. Size about 8cm. Membrance is out in occipital area.
Brain and apiral cord There is bleeding inside the brain.
Thorax : Healthy.
Abdomen Wall : Two penetrating injury is seen over the left side and right side of the abdomen. One wound is seen in lower abdomen.
Peritonoum : Peritonoum is injuredin the injured area. Mouth, Pharynx oesophagus : Healthy.
Stomach and its contents : Contain half digested rice. 4 Small intestine and its contents : Multiple injury of small intestine. Bleeding in the abdomen.
Large intestine and its contents : Injury over the learge intestine and its dutal part.
Muscles bones and joints Injury : Already stebed.
Disease or deformity : Absent.
Foacture : Absent.
Dislocation : Absent."
8. In the opinion of the doctor (PW10), the injuries, sustained by the said deceased, were ante mortem and homicidal in nature and, in his opinion, the death was due to shock and haemorrhage, which resulted from the injuries aforementioned. The post mortem report has been proved by the doctor (PW10) as Ext.4.
9. The findings of the doctor (PW10) were not disputed either by the prosecution or by the defence at the trial. We, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW10). We have, therefore, no reason to doubt the correctness or veracity of the medical evidence on record, which show that Bhanumati Das had suffered as many as five injuries, the injuries being either cut injuries or penetrating injuries. Both types of injuries aforementioned could have been caused by a weapon like sword. Moreover, the injuries were caused on vital parts of the body, such as, chest and abdomen and, thus, the injuries, being ante mortem, were homicidal in nature, the death of Bhanumati Das having been caused due to shock and haemorrhage, which resulted from the injuries sustained by her.
10. Bearing in mind the medical the medical evidence on record, let us, first, come to the evidence of PW2 (Dipali Das). According to the evidence of this witness (PW2), she knows the accused, she knew the deceased, who was 5 mother of the accused, and that the house of the accused was situated near her (PW2's) house.
11. As regards the occurrence, PW2 has deposed that on the day of the occurrence, at about 3.30/4.00 pm, when she was preparing to go out with PW3, Hiramaya Das, for a walk and also for visiting a house in her colony, she heard hue and cry raised from the house of Bhanumati Das, whereupon she (PW2) and Hiramaya Das (PW3) rushed to Bhanumati's house and found the front door closed, but the side door was open and through the said door, when she entered into the house, she found the accused giving blows on his mother by means of a sword and when she (PW2) resisted, she, too, sustained cut injuries. It is also in the evidence of PW2 that out of fear, she came out of the house and she called PW3 and both of them, then, raised hullah. People from the neighbourhood came and they all found Bhanumati Das lying in injured condition with her cloths stained with blood. It is in the evidence of PW2 that she (PW2) noticed the accused going out of his house. PW2 has deposed that injured Bhanumati Das was taken to Solace hospital, where she died, M. Ext. 1 being the sword, which the accused had used.
12. The material aspect of the evidence of PW2 that she had seen the accused giving blows with a sword on his mother was not even disputed by the defence. She (PW2), however, denied the suggestion of the defence that the accused was an insane person.
13. Broadly in tune with the evidence of PW2, PW3 has deposed that on the day of the occurrence, at about 3.30/4.00 pm, when she (PW3) along with PW2, was preparing to go to the house of their relative, they heard Bhanumati Das (since deceased) calling "Sony, Sony", the name of the brother-in-law of PW3, and, upon hearing Bhanumati's cries, they (PW2 and PW3) rushed to the house of Bhanumati Das and by the side door, PW2 entered into the house of 6 Bhanumati Das, but she (PW3) remained at the door and found the accused pushing Bhanumati Das with a sword like instrument and though PW2 resisted she (PW2) sustained in the process, injuries and came out, whereupon both of them, i.e., PW2 and PW3, raised hullah, people came, the accused went out and Bhanumati Das was taken to Solace hospital, where she died. In her cross- examination, PW3 has clarified that she saw the accused assaulting his mother, Bhanumati Das, from a distance of about 10 yards, the occurrence having taken place on 22-01-2001. Even the material aspects of the evidence of PW3 have remained unshaken in her cross-examination by the defence.
14. When the evidence of PW2 and PW3 are considered, in the light of the medical evidence on record, it becomes abundantly clear that the accused- appellant was the one, who had killed his mother by giving her blows by means of a sword. Why the accused-appellant had killed his mother is not really known. The First Information Report, as the evidence on record discloses, was lodged by PW1, whose sister-in-law Bhanumati Das was. Though prosecution witnesses have, by and large, denied that the accused was insane, PW1 (who is informant), has deposed that the accused was treated for mental ailments about 5/6 years before the occurrence.
15. From the evidence, which have surfaced, there can be no doubt that it was the accused-appellant, and none, but the accused-appellant, who had killed his mother, Bhanumati Das, by giving her blows by means of a sword.
16. Whether in the face of the evidence on record, the accused could have been held guilty of having committed the offence of murder is the question, which, now, arises for determination inasmuch as the defence of the accused, we have already pointed out above, has been that he was insane at the time of the occurrence, he had no idea as to what he had done and he ought to have been, therefore, acquitted by applying the provisions embodied in Section 84 IPC. 7
17. Can this Court, in the present appeal, held the accused-appellant not guilty of the charge by invoking the provisions of Section 84 IPC? It is this question, which we have to answer now.
18. Having come to an unhesitant finding that it was the accused-appellant, who had put to death his mother, Bhanumati Das, we, now, turn to the question, posed above, as to whether, at the time, when he had assaulted his mother, by means of a sword, the accused-appellant was in the sound state of mind, because it had been the defence of the accused-appellant, at the trial, as indicated above, that he had been under medical treatment for schizophrenia before the occurrence of assault on his mother took place on 22.10.2001 and even after the occurrence, he had to be treated for schizophrenia and it was because of the fact that he had been, at the relevant point of time, suffering from schizophrenia, that he did not know what he was doing and he was, therefore, entitled to be given the benefit of the provisions of Section 84 IPC, which provides an exception to the doing of an act, which amounts to an offence, by a person of unsound mind.
19. Before dealing with the question as to whether the plea of unsoundness of mind, which the defence had raised at the trial, ought to have been accepted by the learned trial Court or not, it is appropriate that we clearly understand the effect of schizophrenia and also the question as to how a plea of unsoundness of mind, contemplated by Section 84 IPC, can be raised and when can such a plea be held to have succeeded.
20. Before one deals with Section 84 IPC, it is imperative that one bears in mind that it is the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and the burden, therefore, lies on the prosecution to 8 prove the guilt of the accused beyond reasonable doubt. This burden never shifts and it always rests on the prosecution.
21. However, Section 84 IPC provides that 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. This being an exception, the burden of proving existence of circumstance, which can be held to have brought the case of an accused within the exception provided by Section 84 IPC, lies on the accused himself.
22. In Ratan Lal Vs. State of Madhya Pradesh (AIR 1971 SC 778), Sher Ali Wall Md. Vs. State of Maharashtra (AIR 1972 SC 2443), and Oyami Ayatul Vs. State of Madhya Pradesh (AIR 1974 SC 216), the Supreme Court has laid down the following guiding principles:
1. The Court shall presume absence of insanity.
2. Burden of proof of insanity is on the accused, though the burden on the defence is not as heavy as lies on the prosecution to prove an offence.
3. Every minor mental aberration is not insanity and unless the cognitive faculty of mind is destroyed as a result of unsoundness to such an extent as to render one incapable of knowing the nature of his act, he cannot be given the benefit of Section 84 IPC.
4. The accused must suffer from legal insanity and not merely medical insanity.
5. The crucial time, when the accused must be shown to suffer unsoundness of mind is the point of time, when the crime is actually committed.
23. The law is well settled that the burden of the accused to establish his plea, under Section 84 IPC, is not as heavy as on the prosecution. While prosecution must prove its case beyond reasonable doubt, the accused must be held to have 9 succeeded in proving his plea of unsoundness of mind if totality of circumstances probablise the defence of insanity, which an accused takes.
24. Thus, it is on the basis of preponderance of probability that the plea of unsoundness of mind, under Section 84 IPC, has to be determined. There may not be contemporary evidence in support of the plea of insanity; nonetheless, one cannot ignore if there is evidence to show that the accused had been under treatment for insanity or psychiatric disorder before the occurrence had taken place and that he had to be provided with treatment for psychiatric disorder even after the occurrence took place.
25. The National Center for Bio-Technology Information, U.S. National Library of Medicine 8600 Rockville Pike, Bethesda MD, 20894, USA, has outlined as to what schizophrenia is and what are its symptoms. A Division Bench of this Court, in Bangla Bagti Vs. State of Assam, reported in 2012 (1) GLT 193, (to which one of us, I.A. Ansari, J, was a party), has dealt with the question as to what is schizophrenia, what are its symptoms and has extracted, in this regard, the views of the National Center for Bio-Technology Information, U.S. National Library of Medicine 8600 Rockville Pike, Bethesda MD, 20894, USA, in the following words:
"Schizophrenia.
Last reviewed : February 7,2010.
Schizophrenia is a mental disorder that makes it difficult to tell the difference between real and unreal experiences, to think logically, to have normal emotional responses, and to behave normally in social situations.
Causes, incidence, and risk factors.
Schizophrenia is a complex illness. Even experts in the field are not sure what causes it.
Genetic factors appear to play a role. People who have family members with schizophrenia may be more likely to get the illness themselves.10
Some researchers believe that environmental events my trigger schizophrenia in people who are already genetically at risk for the disorder. For example, infection during development in the mother's womb or stressful psychological experiences may increase the risk for developing schizophrenia later in life. Social and family support appears to improve the illness.
Schizophrenia affects about 1% of people worldwide. It occurs equally among men and women, but in women it tends to begin later and be milder. For this reason, males tend to account for more than half of patients in services with high numbers of young adults. Although schizophrenia usually begins in young adulthood, there are cases in which the disorder begins later (over age 45).
Childhood-onset schizophrenia begins after age 5 and, in most cases, after normal development. Childhood schizophrenia is rare and can be difficult to tell apart from other developmental disorders of childhood, such as autism.
Symptoms.
Schizophrenia may have a variety of symptoms. Usually the illness develops slowly over months or years. Like other chronic illness, schizophrenia cycles between periods of fewer symptoms and periods of more symptoms.
At first, you may feel tense, or have trouble sleeping or concentrating. You can become isolated and withdrawn, and have trouble making or keeping friends.
As the illness continues, psychotic symptoms develop:
. Appearance or mood that shows no emotion (flat affect) . Bizarre movements that show less of a reaction to the environment (catatonic behavior) . False beliefs or thoughts that are not based in reality (delusions).
. Hearing, seeing, or feeling things that are not there (hallucinations) Problems with thinking often occur :
. Problems paying attention . Thoughts "jump" between unrelated topics (disordered thinking)
Symptoms can be different depending on the type of schizophrenia:
. Paranoid types often feel anxious, are more often angry or argumentative, and falsely believe that others are trying to harm them or their loved ones.
. Disorganized types have problems thinking and expressing their ideas clearly, often exhibit childlike behaviour, and frequently show little emotion.11
. Catatonic types may be in a constant state of unrest, or they may not move or be underactive. Their muscles and posture may be rigid. They may grimace or have other odd facial expressions, and they may be less responsive to others.
. Undifferentiated types may have symptoms of more than one other type of schizophrenia.
. Residual types experience some symptoms, but not as many as those who are in a full-blown episode of schizophrenia.
People with any type of schizophrenia may have difficulty keeping friends and working. They may also have problems with anxiety, depression, and suicidal thoughts or behaviors."
26. Butterworths Medical Dictionary defines the term schizophrenia to mean:
"Schizophrenia (ski.zo.fre.ne.ah). A mental disorder characterized by a special type of disintegration of the personality: thought processes are directed by apparently random personal associations rather than logically to a goal, there is incongruity between the content of thought and the corresponding emotion, and an impaired relation to reality. Delusions, hallucinations and catanoia may be predominant features. Gk schizen to split, phren mind."
27. We may also note that schizophrenia, which is, sometimes, called split personality disorder, is a chronic, severe, debilitating mental illness. It is one of the psychotic mental disorders and is characterized by symptoms of thought, behaviour and social problems. The thought problems, associated with schizophrenia, are described as psychosis, because in such a state of mind, the person's thinking is, at times, wholly inconsistent with reality. For example, the sufferer may hear voices or see people that are in no way present or feel like bugs are crawling on their skin, when there are none. The individual, with this disorder, may also have disorganized speech, disorganized behaviour, physically rigid or lax behavior (catanoia) significantly decreased. The sufferer may have the feelings, or be under delusion, which have no basis in reality. For example, 12 the sufferer may be under the delusion that others are plotting against him, when they are not.
28. In Shrikant Anandrao Bhosale Vs. State of Maharashtra, reported in (2002) 7 SCC 748, the Supreme Court, while dealing with the concept of paranoid schizophrenia, held as follows:
"10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, 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 sounds or noises in the ears, but afterwards 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 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. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology, 22nd Edn.)"
29. The Supreme Court has also pointed out, in Shrikant Andandrao Bhosale (supra), that according to Modi's Medical Jurisprudence and Toxicology (Twenty Second) Edition, the cause of schizophrenia is still not known, but 13 heredity plays a part. The irritation and excitement are effects of illness. On delusion affecting the behaviour of a patient, he is a source of danger to himself and others.
30. The burden to prove that an accused was of unsound mind at the time of the occurrence and, as a result thereof, he was incapable of knowing the consequence of his acts is, as pointed out above, lies on the accused. Section 84 IPC underlines the exception to Section 105 of the Evidence Act inasmuch as Section 105 IPC requires a Court to presume absence of any such circumstance, which stand provided under Section 84 IPC. The illustration (a) to Section 105 may clarify the position. Illustration (a) reads:
"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof if on A"
31. The Supreme Court has pointed out, in Shrikant Andandrao Bhosale (supra), that the question as to whether the appellant has proved the existence of circumstances bringing his case within the purview of Section 84 IPC will have to be examined from the totality of circumstances. The unsoundness of mind, as a result whereof, one is incapable of knowing the consequences is a state of mind of a person, which, ordinarily, can be inferred from the circumstances.
32. Even if an accused is not able to establish conclusively that he was insane at the time, when he had committed the offence, the evidence, placed before the Court, 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, has not been discharged. (See Shrikant Andandrao Bhosale Vs. State of Maharashtra, reported in (2002) 7 SCC 748).
14
33. Dealing with the nature of burden of proof, which can enable an accused to discharge his burden and bring his case within the ambit of Section 84 IPC, the Supreme Court, in Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat (AIR 1964 SC 1563), observed as follows:
"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (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 is added)
34. It is significant to note that the Supreme Court, in Dayabhai Chhaganbhai Thakkar (supra), pointed out that while considering the plea of Section 84 IPC, the Court has to look into the circumstances, which preceded, attended and followed the offence. The relevant observations appearing, in this regard, in Dayabhai Chhaganbhai Thakkar (supra), read as under:
"When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial 15 point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."
(Emphasis is supplied)
35. From the above observations, made in Dayabhai Chhaganbhai Thakkar (supra), it becomes clear that it is not only the conduct of the accused prior to the occurrence, but also his post crime conduct, which are relevant factors and which shall be taken into account for the purpose of deciding if the plea, which an accused takes under Section 84 IPC, has or has not succeeded, though it is, undoubtedly, the state of mind of the accused at the time of commission of the offence, which has to be proved by the accused so as to get the benefit of the exception, which Section 84 IPC provides.
36. In Shrikant Andandrao Bhosale (supra), the Supreme Court has pointed out, at para 20, that unsoundness of mind before and after the incident are relevant. Even the anger theory, on which reliance had been placed, in Shrikant Andandrao Bhosale (supra), cannot, according to the Supreme Court, rule out attack of schizophrenia.
37. In Shrikant Andandrao Bhosale (supra), having come to the conclusion that there is a reasonable doubt that at the time of commission of the crime, the appellant was incapable of knowing the nature of his act for reasons of unsoundness of mind, held that the accused is entitled to the benefit of Section 84 IPC and, hence, his conviction and sentence, passed against him, cannot be sustained.
38. We may pause here to point out that insanity, as a defence, was earlier used, in English law, as a justification for seeking pardon. Over a period of time, however, the plea of insanity started being used as a complete defence to criminal liability in respect of offences, which involve mens rea. It is also not in 16 dispute that insanity, in medical terms, is distinguishable from legal insanity. In India, as pointed out, in Sudhakaran Vs. State of Kerala, reported in (2010) 10 SCC 582, the defence of insanity is, ordinarily, pleaded, when an offender is said to be suffering from the disease of schizophrenia.
39. For the purpose of claiming the defence of insanity under Section 84 IPC, the appellant is required to prove that his cognitive faculty of mind were so impaired, at the time when the crime was committed, that his medical insanity disabled him from knowing the nature of his act.
40. As already pointed out above, the crucial point of time, for ascertaining the existence of circumstances bringing the case of an accused within the purview of Section 84 IPC, is the time, when the offence is committed and the burden of proving this lies on the appellant. (See Ratan Lal Vs. State of M.P., reported in (1970) 3 SCC 533).
41. In the light of the position of law, as discussed above, when we come to the case at hand, we notice that though some of the prosecution witnesses have deposed that the accused was not a lunatic, the fact remains that the alleged occurrence took place on 22.10.2001 and the accused was produced before the Chief Judicial Magistrate, Goalpara, on 23.10.2001, for recording his confessional statement. The learned Chief Judicial Magistrate remanded him to judicial custody till 29.10.2001 and, on his reproduction on 29.10.2001, the accused declined to make any confession. He was, therefore, remanded to judicial custody. On the next date, i.e., on 30.10.2001 itself, the doctor, at the jail, had to send the accused to Civil Hospital, Goalpara, because of the fact that the accused was noticed to have been suffering from some mental disorder.
42. With regard to the above, we notice that the records, produced by the Lokapriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur, (in short, LGBRIMH), show that the accused-appellant had to be admitted there on 17 08.04.2005 and was discharged on being cured on 02.07.2005 and it was on 23.09.2005 that the case was committed, for trial, to the Session Court and the trial commenced with the framing of charge on 19.11.2005.
43. However, the accused, in his defence, has examined three witnesses.
44. DW1, who is the Medical and Health Officer, District Jail, Goalpara, has deposed that on admission into the District Jail, Goalpara, when the accused was examined by him on 23.10.2001, he (accused) was found to be mentally ill and since he (DW1) was not a psychiatrist, he (DW1) referred the case of the accused to the Civil Hospital, Goalpara, and, at the Civil Hospital, Goalpara, one doctor examined the accused and gave him some medicine and, subsequently, the doctor referred the accused to LGBRIMH, Tezpur, because, at that time, there was no psychiatrist at Goalpara Civil Hospital and it was on 05.11.2001 that the accused was sent to LGBRIM by the order of the Chief Judicial Magistrate, Goalpara, and he was sent back to the District Jail, Goalpara, by the said hospital on 15.03.2002.
45. It is also in the evidence of DW1 that the accused-appellant is presently taking medicines for chronic psychosis. Ext A to R are the documents, relating to the treatment of the accused, while he has had been in the custody of the District Jail, Goalpara.
46. From the evidence of DW1, it also transpires that in the month of April, 2005, the accused, suddenly, attacked one convict and behaved so abnormally that on the following day, he was sent to Civil Hospital, Goalpara, for examination and medical treatment, but the psychiatrist, at Civil Hospital, Goalpara, referred the accused to LGBRIM and he was accordingly sent, on 08.04.2005, by the order of the Chief Judicial Magistrate, Goalpara, to the LGBRIMH and the accused came back, on being discharged, on 02.07.2005, from LGBRIMH. 18
47. We may also pause here to point out that the relevant records, produced by DW2, who is Superintendent of LGBRIMH, show that the accused was admitted into LGBRIMH on 05.11.2001 and he was discharged, on 15.03.2002, after treating him for schizophrenia.
48. Schizophrenia, according to DW2, is a chronic disease characterised by relapses and remission supported by medication. A patient of schizophrenia cannot interpret the release in a rational way.
49. DW3, who was, at that relevant point of time, Senior Medical and Health Officer, Civil Hospital, Goalpara, has deposed that the accused was admitted, on 05.11.2001, in Goalpara Civil Hospital and discharged on 15.03.2002, but he was, again, admitted on 08.04.2005 and discharged on 02.07.2005 and that he was treated for schizophrenia, a major psychiatric disorder.
50. DW3, who was, at that relevant point of time, the Senior Medical and Health Officer, Goalpara, has deposed that on 01.03.2000, the case of the accused had been diagnosed as chronic schizophrenia and he had been given treatment and prescribed medicines, Ext.A(26) is the OPD Register and A(27) is the relevant entry. Thus, it is more than amply clear that the accused-appellant was treated for schizophrenia as far back as on 01.03.2000, i.e., less than a year before the alleged occurrence.
51. Coupled with the above, the relevant records, produced from the District Mental Health Programme, conducted by the Civil Hospital, Goalpara, show that the accused-appellant was examined on 01.03.2000 and was given same medicine for his mental illness, which has been given to him by LGBRIMH. This, too, shows that the accused was treated for schizophrenia as far back as on 01.03.2000, i.e., less than a year before the alleged occurrence.
52. Thus, the accused-appellant was, undoubtedly, treated before the occurrence for schizophrenia and, on the following day of the occurrence, he was 19 found by the doctor of District Jail, Goalpara, to have been suffering from mental disorder and, eventually, he had to be treated, at LGBRIM, for schizophrenia and he is still being provided with medicines, which were prescribed by the doctor of LGBRIM.
53. From the totality of the circumstances, there can be no escape from the conclusion that the accused-appellant has had been a patient of schizophrenia and, in such circumstances, he ought to have been held to have discharged his burden of proving that he suffered from unsoundness of mind so much so that he, without any reason whatsoever, assaulted his mother by means of a sword, killed her and did not even try to run away.
54. What crystallizes from the above discussion is that the accused-appellant was clearly of unsound mind at the relevant point of time and was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law.
55. In our considered view, the present one was a fit case, where the learned trial Court ought to have held that the accused has succeeded in establishing his plea as provided by Section 84 IPC and was, therefore, entitled to the protection thereof. Logically, therefore, the accused-appellant ought not to have been held guilty of the offence charged with and he could not have been convicted therefor.
56. Because of what have been discussed and pointed out above, this appeal succeeds. The conviction of the accused-appellant, by the impugned judgment and order, are hereby set aside. The accused-appellant is hereby held not guilty of the offence, which he was charged with and is acquitted of the same.
57. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case.
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58. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court.
59. Send back the LCR.
JUDGE JUDGE Duttanj-Paul