Gauhati High Court
Achyut Mahili vs The State Of Assam on 3 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 568
Author: S.Hukato Swu
Bench: S. Hukato Swu
Page No.# 1/17
GAHC010033032018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 28/2018
1:ACHYUT MAHILI
S/O. SRI GOBIN MAHILI, R/O. RAJOI PURANA HATKHOLA, P.S. TEOK,
DIST. JORHAT.
VERSUS
1:THE STATE OF ASSAM
REP. BY THE P.P., ASSAM, GHC, GHY.
Advocate for the Petitioner : MR. A K GUPTA, AMICUS CURIAE
Advocate for the Respondent : MR. B J DUTTA(ADDL.PP, ASSAM)
Date of hearing : 24-01-2020
Date of judgment : 03.02.2020
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE S. HUKATO SWU
JUDGMENT & ORDER
(CAV)
(S.Hukato Swu, J)
This jail criminal appeal is directed against the judgment and order dated 21-11-2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 65 (J-J)/2015 corresponding to G.R. Case No. 1463/2014 in Page No.# 2/17 connection with Teok P.S. Case No. 196/2014.
2. The facts of the case in brief is that on 30-06-2014, accused Achyut Mahili killed his mother Sakhila Mahili with a dao. His younger brother PW 4, Kesharam Mahili left the accused and his mother deceased and went to give tea to his father who was working in the paddy field. On his return found his mother lying in a pool of blood. He asked his accused brother of the incidence but he kept mum. There was no eye witness to the killing of the deceased but the appellant was circumstantially suspected to be the accused. There are five witnesses who have testified that the accused had mental disorder prior to the incidence. Doctor of the Jorhat Central Jail, DW 2, DW 1 and DW 3 of the Jorhat Medical College of Psychiatric Department, Dr. Kamla Deka and Dr. Soumik Sen Gupta, Assistant Professor of LGB Regional Institute of Mental Health Tezpur testified that the accused was a schizophrenia patient. Kopi dao which was the weapon of offence was seized but not sent to forensic examination. Plea of insanity was raised at the trial but it was not accepted and it was ruled as an afterthought defence. Accused was sentenced to imprisonment for life under Section 302 IPC and to pay a fine of Rs. 5,000/- by the learned Sessions Judge, Jorhat on 21-10- 2017 which is now under consideration as jail appeal.
3. The appellant is represented by Mr. A.K. Gupta, learned Amicus Curiae who has assailed the judgment and order dated 21-11-2017 on the ground that the plea of the accused under Section 84 IPC was not duly considered in its true legal perspective and has pleaded that the accused be given the benefit of Section 84 IPC.
4. The second plea taken by the learned Amicus Curiae is that the seized weapon of offence 'kopi dao' was not exhibited and the weapon of offence was described in different manner by the I.O. and P.W.4, who is the brother of the accused and the first person to appear in the place of Page No.# 3/17 occurrence has testified that the dao was stained with blood. P.W. 6 Sri Goneswar Kumar who was the I.O. of the case testified that there was no blood stain present in the aforesaid kopi dao and he stated that the weapon was not sent to the FSL for expert opinion. To drive home his point of arguments, he has placed reliance on the Division Bench of our High Court in the case of Bangla Bagti-vs-State of Assam, reported in 2012 1 GLR 115, where the police officer, PW 10 failed to sent the blood stained dao for chemical examination for ascertaining whether the same contained human blood or not. The Hon'ble Division Bench held that as there was no examination regarding existence of human blood in the seized dao, it cannot be held that the dao contained human blood, far less the blood of the deceased. Therefore, it cannot be held that the said weapon was used by the accused in killing the deceased. As discussed above, none of the witnesses saw the accused person committing the alleged offence. Therefore, there is no direct evidence, on record, to hold that the accused person had caused the injuries, sustained by the deceased. Mere presence of the accused, who is the son of the deceased and who is stated by PW 2 to be mentally unsound mind, near the dead body of his father, cannot be substantive evidence to conclusively lead to believe that he had killed his father.
5. Learned Amicus Curiae has argued that in the present case at hand, the same facts are seen. The dao was seized however, the same was not sent for forensic examination. Thus, taking the ratio decided in the above mentioned case, the learned Sessions Judge should have given benefit of doubt to the accused.
6. Furthermore, there is no eye witness in the whole evidence. The nearest person who could have been an eye witness was the brother of the accused, PW 4, who was present with the deceased and the accused prior Page No.# 4/17 to his going to the paddy field to give tea to his father who was working there. However, he has also not witnessed the incident. The circumstantial evidence that is shown on record falls short of the requirement of criminal jurisprudence which cast heavy duty upon the prosecution in a case of circumstantial evidence. No one has seen the accused person killing his mother. All the witnesses are hearsay witnesses including the person having the most proximity to the occurrence of incident i.e. PW 4 brother of the accused. This being the fact, the prosecution must prove beyond all reasonable doubt that the offence was committed by the accused ruling out the rest of the world from the probability of committing of the offence in question.
7. In the instant case, PW 4, the brother of the accused when he departed from his house leaving the victim mother and the accused brother, it was duration of about 1 ½ hours during which space of time, there is possibility of anyone coming and committing the offence. Hence, circumstantially, we cannot conclusively come to the decision that the accused was the perpetrator and no one else.
8. It has therefore been argued that this fact alone should have been considered for the acquittal of the accused.
9. Coming to the plea of insanity under Section 84 IPC, learned Amicus Curiae has placed reliance on the ruling of the Division Bench of the High Court of Rajasthan in the case of:-
Criminal Jail Appeal No. 921 of 2002 Vidhya Devi
-vs-
State of Rajasthan (decided on 08-01-2004) wherein, it has been ruled that the burden of proof under Section 84 IPC Page No.# 5/17 which is cast upon the accused is lesser in degree. The burden of proof of legal insanity is on the accused though it is not as heavy as on the prosecution to prove an offence. In determining whether the accused has been successful in discharging the onus, the Court shall look into the preponderance of probabilities in the same manner as in a civil proceeding. In other words, the Court shall have to see whether a prudent man would, in the circumstances of the case, act on the supposition that the case falls within the exception or proviso as pleaded by the accused. In a case in which any general exception of the IPC or any special exception or proviso contained in another part of the same code or in any law defining the offence is pleaded or raised by an accused person and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act. In other words, to disprove the absence of circumstances bringing the case within the said exception; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the court, as regards one or more of the ingredient of the offence, the accused person shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence. When a plea of insanity is set up by the accused, the burden of proof is on him to prove it. But a man, who is unsound will not be able to defend himself properly and effectively. Thus, it is the duty of the Court to look after the defence of the accused in the light of the evidence on record.
10. Furthermore, he has argued fundamental principle of criminal law is that mens rea (guilty mind) is an essential element in every offence and no crime can be said to have been committed if the mind of the person doing Page No.# 6/17 the act is not guilty Since criminal act is an indispensable element in every crime, a person incapable of entertaining such intent cannot incur legal guilt. Idiots and lunatics are, therefore, not liable in criminal law for their acts. It has been said that a mad man is best punished by his own madness. (Furiosus furore suo punier); or that a mad man has no will (Furiosus nulla voluntus est); or a mad man is like one who is absent (Furiosus absentis loco est).
11. He has argued that the whole case record does not reflect any animosity nor any element which can be regarded as motive for the commission of the offence. Hence, there is total lack of motive/intention as required in the criminal law for commission of crime and the present case being devoid of these elements accused cannot be made punishable for the act he does not know.
12. The learned Amicus Curiae has also placed reliance on the Apex Court in the case of:-
Appeal (Crl.) 180 of 2000 Shri Kant Anandrao Bhozale
-vs-
State of Mahaashtra (decided on 26-09-2002) where the accused on the morning of 24th April, 994 had quarrel with his wife. While Surekha (deceased) was washing clothes in the bathroom, the appellant hit her with a grinding stone on her head and she died. Accused was found guilty by the Sessions Court under Section 302 IPC which was confirmed by the High Court and it went on appeal to the Supreme Court.
The Apex Court considered the facts of the case and acquitted the accused on the ground that he had prolonged history of illness both in the family and he was also treated in the hospital for 25 times for the same Page No.# 7/17 ailment. Added to this, there was weak motive for killing the wife.
The instant case is also very similarly situated. There is history of insanity and there is absolutely no motive.
13. Since the matter is an appeal against non-examination/proper examination of the evidence that was marshalled by the Sessions Judge, it is pertinent to once again take a relook at the evidences that were brought before the trial court, resulting the accused being convicted under Section 302 IPC. It will be apposite to go into the evidences which are brought in question related to insanity of the accused.
14. Some of the relevant evidence which throw light on the insanity of the accused has been observed in the statement of PW 1, Sri Mukunda Mahili, who is the nephew of the deceased and he is also the informant in the case. This witness who is a close relative of the accused is the person who has knowledge about the history of the accused and in his cross- examination, he has specifically stated that the accused forgets everything as he has mental infirmities. This witness also further stated that the dao was produced by the father of the accused before the police which was placed on the bamboo chang ghar. He noticed the accused in neat and clean condition and the accused was about to go somewhere.
15. PW 2 is Sri Kamal Karmakar, who is the VDB Secretary of Rajoi Purana Hatkhola Gaon stated that he was informed by Sri Biju Dutta over telephone that murder had taken place in the house of the accused and requested him to go there. He arrived at the house and witnessed the dead body of the mother of the accused lying in pool of blood in the floor of the kitchen. After observing this, he became unconscious. When he arrived at the house of the accused, he noticed the accused coming out of the house in neat and clean condition. He stated that about one month ago, the accused was untraceable and when the accused father took the accused Page No.# 8/17 for medical checkup to Hydrabad where he was cured. Furthermore, the witness also stated that the father of the accused told him that the accused is mentally imbalanced.
16. PW 3, Sri Govinda Mahili is the father of the accused. He has stated that the incident was informed by the younger son while he was working in paddy field. When he returned, he saw his wife lying on the floor of the kitchen. He also witnessed cut injury over the neck of his wife. He then questioned the accused about the incident but the accused kept mum. It is further stated by the witness that he saw the dao being kept by the accused son near the door of their house. The same was seized by the police after informing them and seizure list prepared as Exhibit 2. During cross-examination, he has stated that one year prior to the date of incident, the accused developed mental defect occasionally. He was medically examined by the doctor and he was given medicine. He has also stated that he has submitted the medical documents of the accused to the jail authority. When he returned back home from the paddy field, he saw accused waiting near the bamboo fencing and he was intending to go somewhere. During medical treatment of the accused, he used to sleep with him and on the previous night also, the accused slept with him.
17. PW 4, Sri Kesharam Mahali is the younger brother of the accused. On the date of the incident, he went to the paddy filed to give tea to his father. Prior to his going to the field, he left the accused and his mother at home. When he returned home, he witnessed the accused near the fencing of their compound. He witnessed his mother lying in a pool of blood in the kitchen. Thereafter, he immediately went to the paddy field to inform his father. When he raised the alarm, the accused tried to run towards the road. This witness also testified that prior to the date of incident, his elder brother i.e. the accused was suffering from mental disorder. He saw his Page No.# 9/17 brother in neat and clean condition waiting near the bamboo fencing of their compound. The accused was intending to go out somewhere.
18. PW 5 Sri Hari Gowala is the neighbor of the accused and he was present when the police inquest was done over the dead body of the mother of the accused where he signed on the Exhibit-3. During cross- examination, the witness testified that the accused was a mental patient prior to the date of incident. The defence produced three witnesses who were examined and all of them testified with regard to the insanity of the accused.
19. DW 1 Dr. Kamala Deka, Professor and Head of Department of Psychiatry, Jorhat Medical College & Hospital testified that the accused was treated by him on 29-09-2015. The accused was also treated by his predecessor-in-office, Dr. Pallab Kumar Bhattacharjee at Jorhat Medical College & Hospital as the accused was referred by Jail Authority to the hospital. He testified that the accused was suffering from F-20 disease which stands for schizophrenia which is a major mental disorder. The accused was treated from 18-06-2015 to 22-06-2015 and psychotic symptoms like auditory hallucination, delusion of persecution and ideas of reference were found on the UTP Achyut Mahili. The patient could not abstract and judgment was impaired. Schizophrenia is a severe psychotic disorder and it is characterized by abnormal social behavior and failure to understand what is real.
20. Accused Achyut Mahili was sent to Central Jail 01-07-2014 i.e. one day after the incident of the case. Evidence of Dr. Mukul Kurmi, DW 2, who is the Medical Officer of Jorhat Central Jail are as follows: - he had abnormal behavior at the time of admission into the jail. He was adamant and he did not eat his food properly and was aggressive in nature. The accused was kept under observation for 20 days and he was given sedation to keep him Page No.# 10/17 calm. However, the accused did not recover and hence, he was referred to Jorhat Medical College & Hospital on 22-07-2014 for treatment at the Psychiatric Department.
21. The doctor from Jorhat Medical College & Hospital referred the accused to Tezpur Mental College & Hospital and the accused was sent to Tezpur on 28-08-2014. From 28-08-2014 till 26-03-2015, he was admitted at Tezpur Mental College & Hospital. Thereafter, he was discharged and sent back to Jorhat Central Jail with advice to continue medicine. After about 1 ½ months, again the accused relapsed. He did not take his food properly. On 18-06-2015, again, he was referred to Jorhat Medical College & Hospital where he was admitted till 22-06-2015. Thereafter, he was sent to Medical College & Hospital Jorhat about 9 (nine) times. On 13-05-2016 till 24-05-2016, the accused was again hospitalized at Jorhat Medical College & Hospital where the doctor disclosed that he was suffering from paranoid schizophrenia which is a prolonged disease and the accused should take lifetime treatment. Prior to his admission in jail, he was not in a position to speak about the state of his mind.
22. DW 3 is Dr. Soumik Sengupta who is Assistant Professor of L.G.B. Regional Institute of Mental Health at Tezpur testified that the accused was sent to their hospital on 01-09-2014. The accused was examined by Dr. Amal Kalita and the patient was diagnosed with I.C.D. 10 F-20
23. With the above medical history of the accused, the learned Sessions Judge came to the conclusion that the accused was treated only in the year 2015 and his insanity was found to be of no substance as far as incident of case in hand is considered. It was also opined that the doctor of L.G.B. Regional Institute of Mental Health at Tezpur could not ascertain the history of the mental ailment of the accused prior to 01-09-2014 when he was first sent for treatment at L.G.B. Regional Institute of Mental Health, Tezpur. The Page No.# 11/17 learned Sessions Judge has relied upon the case of:-
(2017) 2 GLR 180 Saibur Rahman Barbhuyan
-vs-
State of Assam where it has been held in para 12 that the law relating to plea of insanity have received due consideration of the Apex Court with reference to Modi's Medical Jurisprudence and Toxicology. Reliance is also placed on the cases of:-
(2002) 7 SCC 748 Shrikant Anandrao Bhosalw
-versus-
State of Maharashtra (2010) 10 SCC 582 Sudhakaran
-versus-
State of Kerala (2013) 12 SCC 270 Mariappan
-versus-
State of Tamilnadu.
In the said cases it has been categorically held that although a person may be treated medically as a mentally sick person, however, for the purpose of claiming the benefit of the defence of insanity in law, he 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. The settled proposition of law as to the crucial point of time for ascertaining Page No.# 12/17 the existence of circumstances within the purview of section 84 IPC has been consistently held as the time when the offence is committed. Also, it is well settled in law that when a person is bound to prove the existence of any fact, the burden of proof lies on that person.
24. He has opined that there is nothing on evidence to indicate that up to the time of occurrence, the accused suffered from any sort of mental ailment. There is no clinching evidence on record to prove the characteristics habit from which it can be concluded that he was acting like an insane man at the time of occurrence. No evidence has been adduced by the defence that before the commission of the crime in question, the accused showed abnormality and acted violently towards the members of his neingbourhood. At no point of time, his behavior is shown to be abnormal prior to the occurrence. The plea of insanity though not strictly by implication appears to have been taken by the accused for the first time after recording his statement under Section 313 Cr.PC. Keeping all the above aspects plea taken by the defence of insanity, it was found to be afterthought and devoid of any substance.
25. The 3 (three) doctors examined by the defence could not give any opinion in respect of accused mental state of mind at the time of commission of the offence. They could not testify that the cognitive faulty of his mind was destroyed as a result of unsoundness of mind to such an extent as to render him incapable of knowing the nature of the act or that what he was doing was contrary to law. For the above stated reasons, the learned Sessions Judge found the accused to be guilty of offence under Section 302 IPC and thereby, conviction followed.
26. Above are the grounds of appeal agitated by the learned Amicus Curiae for setting aside the impugned order. The reasons and findings recorded by the learned District Judge as indicated above is not in Page No.# 13/17 conformity with the evidences placed before the Court. Therefore, the plea that the impugned order be set aside.
27. We have considered the grounds raised by the learned Amicus Curiae. On marshalling the evidences placed before us, there can be no doubt that the accused is guilty of the offence of murder. There is not a single evidence to suggest that there could be another person who could have committed the offence within the time when PW 4 left the deceased and the victim. None of the witnesses who are neighbours have even slightly hinted this nor has the investigation brought this fact before us. The accused and the deceased were alone. Therefore, we have come to the conclusive decision that the accused alone can be responsible for the murder of the deceased and no one else.
28. Considering the evidences laid before us, these factor seems to have escaped the mind of the learned Sessions Judge, which needed consideration. All the statements made by the close relatives and neighbors who testified that the accused was suffering from insanity prior to his committing of the offence. It was stated by the father of the accused, it was stated by the brother of the accused, it was stated by the neighbor of the accused, it was also stated by the VDP Secretary, PW 2 of the locality who is a responsible persons and it was also stated by PW 5 who is from their village. Considering all these statements of the closest persons who will be in the know of the character and conduct of the accused have testified of his insanity. There is testimony of atleast 5 (five) witnesses, who have clearly mentioned that the accused was suffering from mental illness prior to occurrence of the incident. The law related to the defence of insanity requires that the mental state of mind of the accused at the time of the commission of the crime should be established. However, this rule cannot be strictly incorporated as it would be a very difficult task to establish the Page No.# 14/17 mental state of mind of a patient whose insanity is not constant and is subject to fluctuation. If this be the rigid condition, a genuine mental patient will not get the privilege of the provision of Section 84 IPC which is the genesis of criminal law based on the basic principle that a person without guilty mind, guilty object should not be punished, thus resulting in gross injustice. A person who is unaware and oblivious of his action is thus protected under Section 84 IPC. What mental state of mind the person was at the time of commission of an offence cannot be proved unless the doctor is always right beside the accused person to make assessment immediately after commission of offence, which is an impossible proposition. Therefore, the most accepted way of assessing the mental state of a person during offence would be to consider the behavior of the accused before, after and at the time of commission of the offence and also considering all circumventing facts. In the instant case, what we observe is the expressionless emotion of the accused after the commission of the gruesome murder such as killing of one's own mother. The reaction of his younger brother who first saw the corpse of his mother reacted by shouting and screaming. The reaction of the VDP Secretary is also exemplified as he became unconscious when he witnessed the corpse of the deceased. The accused was expressionless as stated by the father of the accused and the brother of the accused and also stated by the other witnesses which is an abnormal behavior. He was also neatly dressed. Thereafter, the defence witness DW 3 has stated that the accused had abnormal behavior at the time of admission into the jail. He was adamant to eat his food properly and was aggressive in nature. He was kept under observation for 20 days and sedation was given to him but that also could not keep him calm. Therefore, he was sent to Jorhat Medical College & Hospital but subsequently referred him to Tezpur Psychiatric Hospital for treatment for more than 7 (seven) Page No.# 15/17 months from 28-08-2014 till 26-03-2015. Thereafter, the accused was discharged however, he relapsed again after 1 ½ months and from thereon, the accused was sent to the Psychiatric hospital for at least 9 (nine) times. The doctors opined that the accused suffered from F 20 i.e. Schizophrenia which is extreme mental disorder. Thus, all these behaviours before and after must be taken into consideration while considering the state of mind of the accused at the time of commission of the offence. Unless this is done and we consider the culminative facts, it is almost impossible to determine the actual mental state of mind of the accused at the time of commission of offence. All the doctors appearing in the instant case have testified that the accused suffers from Schizophrenia.
29. However, in our case, the best witness who is the doctor of the Central Jail, Jorhat has testified that the accused was showing extremely abnormal behavior which could not be controlled even after sedation of 20 days and was compelled to refer his matter to Jorhat Medical College and Hospital and thereafter, to Tezpur Psychiatric Hospital where the accused was continuously treated for more than 7 (seven) months and even after that he relapsed. That was the mental state of mind of the accused after the commission of the offence as already narrated, the accused was testified to be having psychiatric problem by 5 witnesses and also by his father who has stated that the accused was having psychiatric problem, the accused would sleep with him whenever he had such attacks and it was narrated by the father of the accused that he slept with the accused the previous night of the incident. This clearly proves that the accused was showing signs of attack before and after the incident. With all these evidences, we are of the view that the accused was deprived of his mental faculty during the commission of the offence and he was unable to discern as to what was right and wrong, he was totally deprived of his normal sense.
Page No.# 16/17 Thus, we are of the view that the insanity was grave enough to be considered within the meaning of legal insanity. Considering all these facts and circumstances, we are of the view that the defence has proved that the accused was suffering from mental disorder at the relevant point of time and should be given the benefit as provided under Section 84.
30. There is no doubt in our minds having regard to the conduct of the accused before and after the incident, that he was suffering from schizophrenia and that he had committed the offence at the time when he was experiencing mental attack. His reaction after commission of offence is also very strange as he did not utter any word nor did he show any expression as is expected out of a normal person. The ratio laid down in the above relied cases, the requirement for proving exception is only to the extent of preponderance of evidence and which is the degree of a normal person. Legal insanity as such, in our judgement is considered proved in the instant case.
31. The accused is to be given the benefit of the provision of Section 84 IPC having discharged his burden under Section 105 of the Evidence Act.
32. For the reasons and discussions made above, we find sufficient merit in this appeal, requiring interference.
33. The appeal is allowed.
34. Accordingly, the impugned conviction and sentence passed by the learned Sessions Judge, Jorhat in Sessions Case No. 65 (J-J)/2015 corresponding to G.R. Case No. 1463/2014 in connection with Teok P.S. Case No. 196/2014 is set aside.
35. The accused, namely, Achyut Mahili shall be set at liberty, if not wanted in any other case.
36. However, the provisions of Section 335 Cr.PC has to be complied with in the instant case. This Court having no proximity to the accused and Page No.# 17/17 ground realities, the District Judge, Jorhat is directed to take steps and satisfy himself on the provisions laid down under Section 335 Cr.PC and pass appropriate order as deemed fit with respect to the release or custodial arrangement of the acquitted accused.
Send back the LCRs for District Judge to take steps as indicated above.
Having appreciated the services rendered by the learned Amicus Curiae, Mr. A.K. Gupta, we provide that he shall be entitled to provisional fee of Rs. 7,500/- which shall be paid by the High Court Legal Services Committee on production of a copy of this judgment and order.
JUDGE JUDGE Comparing Assistant