Bombay High Court
Shriram vs The State Of Maharashtra on 24 January, 1990
Equivalent citations: 1991CRILJ1631
JUDGMENT M.M. Qazi, J.
1. The appellant has been convicted of the offence punishable under S. 302 of the IPC by the Additional Sessions Judge, Buldana, for committing the murder of his two grand-daughters and one grand niece on 18th October, 1985 at village Mundaphal, District Buldana.
2. This is one of the rare cases where the appellant has been found to have committed murder of his two grand-daughters Kalpna aged 4 years and Kavita aged 2 years, and one grand niece aged 1 1/2 months, apparently for no motive. The incident was reported almost immediately by the daughter of the appellant herself, viz. Shobha (P.W. 3), whose two kids have been does to death. All the relevant details are stated in the first information report (P.W. 21). Offence under section 302 of the IPC. was registered and the investigation started. Shobha (P.W. 3) was married in the year 1985 and was living at Hiwra, taluq Mehkar, District Buldana. She had come to her father's house at Mundaphal for delivery along with her two daughters Kalpna and Kavita. About 1 /z months before the date of the incident, viz, 18th October 1985 Shobha delivered a female child by name Savita. The members living in the house of the appellant were the appellant himself, his wife Kaushallya, his three sons Mahadeo, Parmeshwar (P.W. 4) and Devanand, and daughter Shobha (P.W. 3). One Sharda alias Bali aged 4 years - the daughter of the brother-in-law of the appellant was also living with him.
3. On 18th October 1985 in the after-noon Shobha; her father appellant and the three girls,.viz, Sharda, Kavita and Savita were in the house. The other members had gone for work in the field while the third son Parmeshwar had gone to attend the school. On the same day at about 4.00 p.m. Shobha went to answer the call of nature a little away from the house and the only inmates in the house were the appellant and the three girls Sharda, Kavita and Savita. The appellant seeing that so elderly person was in the house closed the door from inside and started assaulting the three kids. In the meantime, Parmeshwar returned from the school. He found that the door of the house was closed from inside. He also heard cries coming from inside the house. He therefore, peeped into the house through the gaps of the door and saw that the appellant was hitting the girls Cri.L.J. with the handle of the, grinding stone. He immediately rushed to find out Shobha. He, however, met Shobha on the street while she was returning after answering the call of nature. Parmeshwar narrated her the entire story. They both then ran towards the house. However, the door of the house was still closed from inside. When Shobha peeped into the house through the gaps of the doors, she saw that the appellant was hitting Sharda and Kavita with the handle of the grinding stone. She also saw that Savita was lying on the ground with injuries on the head and the brain had come out. Both Shobha and Parmeshwar asked the appellant to open the door. The door of the house was then opened and the appellant ran out of the house while dropping the handle in the house itself. Shobha and Parmeshwar entered the house and found that Savita was already dead; Kavita was lying with injuries and Sharda was crying. She also had an injury on the head. Seeing this scene, Shobha and Parmeshwar cried and shouted which attracted the several persons, viz, Nathu, Subhash, Madhukar and Narayan, who come to the house. They asked what had happened and Shobha told them that the appellant had hit the girls and ran away. Nathu and Madhukar took the two girls Sharda and Kavita to the dispensary. In the meantime, police also arrived on the spot, A.S.I. Chavan took Shobha with him in the Police Jeep to the Police Station where her complaint was recorded, which was treated as First Information Report (Ex. 21). It may be stated here that she has stated in the first information report that her father was getting fits of lunacy and it was in the state of lunacy that he killed the three kids. Out of the two girls, Kavita alias Laxmi expired on 19-10-1985 in the hospital and the other girl Sharda succumbed to her injury on the same day at 5-25 p.m.
4. There are only two eye-witnesses to the incident, viz., Shobha (P.W. 3) and Parmeshwar (P.W. 4). Shobha in her evidence stated that at the time of the incident, since she had gone to answer the call of nature, there was none except her father appellant and the three kids, since the other members of the family had gone to the field while her brother Parmeshwar had gone to the school and the sister had gone to the village. According to her, she met her brother Parmeshwar on the way while she was returning after answering the call of nature and it was her brother who told her that the appellant was assaulting the kids. She, therefore, rushed to the house. She found that the front door was chained from inside. She then peeped into the house through the gaps of the door and noticed that her father was hitting Sharda and Kavita with the Handle of the grinding stone. She also saw that Savita was lying there with injuries on her face. She, therefore asked her father to open the door. The appellant opened the door and ran out of the house. Then she entered the house and found that Savita was already dead and other girls has suffered several injuries. Seeing this, she started crying which attracted the neighbours, as a result of which Nathu, Subhash, Madhukar and Narayan came there. She narrated the earlier incident to them. Nathu and Madhukar took Sharda and Kavita to the dispensary of Janephal. After some time, police came there and took Shobha in the police jeep to the police station were her complaint was recorded, She was deposed that the complaint was correctly recorded. In cross-examination she deposed that her father was unable to sleep for 7 to 8 days prior to the date of the incident. She also admitted that he used to get angry on anyone during that period and he did not like any body talking or making noise. Her evidence is consistent and corroborated by the first information.
5. The other eye-witness is the son of the appellant, Parmeshwar (P.W. 4) aged about 14 years. On the date of the incident at about 4-00 p.m. he returned from the school and found that the door of the house was closed from inside. He also heard the cries of the girls coming from inside the house. He then peeped into the house through the gaps of the door and saw that his father was hitting the girls with the handle of the grinding stone. We then ran away to find out his sister Shobha, who met her on the way while she was coming after answering the call of nature. He narrated the entire incident to her. Shobha then rushed to the house. She also found that the door of the house was closed from inside. She, therefore, peeped into the house through the gaps of the house and noticed that her father was hitting the girls. She asked her father to open the door. The door was accordingly opened, but the appellant ran away out of the house and while running away he dropped the handle of the grinding stone in the house itself. He further deposed that he and Shobha raised cries which attracted the people who came on the spot. In the cross-examination he also admitted that his father did not sleep for about 7 to 8 days prior to the date of the incident.
6. In view of the information disclosed in the First Information Report about the history of lunacy of the appellant, the Additional Sessions Judge directed at the appellant to be examined by the Civil Surgeon under section 328 of the Code of Criminal Procedure. The appellant was kept under observation of the Civil Surgeon for 10 days and thereafter he gave the certificate (Ex. 6) which shows that the speech and behaviour of the appellant was normal. In view of this certificate, the Additional Sessions Judge proceeded with the trial and ultimately convicted the appellant essentially on the basis of the testimony of two eye-witnesses.
7. Mr. Sirpurkar attacked the certificate (Ex. 6) on the ground that the Additional Sessions Judge while directing the Civil Surgeon to examine the appellant did not forward the history of the appellant which could have enabled the Civil Surgeon to come to a correct finding. According to Mr. Sirpurkar the history of the appellant shows that he was getting the fits of lunacy intermittently. It was, therefore, necessary to have kept such a patient for longer period than 10 days in order to arrive at a correct conclusion. Mr. Sirpurkar contended that there is sufficient material on record to come to the conclusion that the appellant killed the three kids in the fit of lunacy and, therefore, he was entitled to the benefit of S. 84 of the IPC. At any rate, according to Mr. Sirpurkar; this is a case which creates great doubt as to whether the appellant had the mens rea to kill the three kids. In view of this, Mr. Sirpurkar submitted that the appellant will have to be acquitted giving him the benefit of doubt.
8. After giving our anxious consideration we are satisfied that in view of the facts and circumstances of this case, the appellant will have to be given benefit of doubt, for the following reasons.
(i) The prosecution has not come with clean hands inasmuch as it did not examine the three witnesses, vis., Kaushally-the wife of the appellant, Mahadeo-elder son of the appellant aged 14 years, and Bhika-son-in-law of the appellant, though they were cited. Mr. Sirpurkar has, in our view, rightly urged that had they been examined, this could have thrown much light on the history of lunacy of the appellant.
(ii) The application dated 19-10-1985 filed by the prosecution before the Judicial Magistrate, First Class, Mehkar, indicating that from the first information report as well as the interrogation of the appellant there was sufficient indication that he was suffering from mental disorder and therefore, a request was made that the appellant be sent to the Civil Surgeon for examination. This request having been rejected by the Magistrate, the prosecution ought to have challenged that order since the request was wrongly rejected by the Magistrate.
(iii) The Additional Sessions Judge though sent the appellant for medical examination to the Civil Surgeon after about 5 months, did nor forward the history of lunacy of the appellant to the Civil Surgeon. The history of lunacy would have enabled the Civil Surgeon to come to the correct conclusion.
(iv) There was no motive whatsoever on the part of the appellant to kill his granddaughters.
(v) The first information report shows that the appellant killed the three kids in the fit of lunacy.
(vi) The symptoms which have been pointed out by Modi in the Medical Jurisprudence (Twentieth Edition) lend support to the defence version that the appellant killed the three kids of in the fit of lunacy. The relevant portion of Modi's Medical Jurisprudence relied upon by Mr. Sirpurkar under the heading "Criminal Responsibility" reads thus :
The law presumes every individual at the age of discretion to be same and to possess a sufficient degree of reason to be responsible for his criminal acts, unless the contrary is proved to the satisfaction of the Court. In criminal cases where insanity is raised as a plea of irresponsibility the burden of proving it lies on the defence. Insanity may be proved from facts alleged or proved by the prosecution or independently by the defence. When a person accused of murder is alleged to be insane, the presiding officer of the court generally asks the medical officer to keep the accused under observation and to certify whether he is insane or not. The medical officer takes the following points into consideration before deciding whether the murder was the result of insanity :
1. The Personal History of the murderer, The murderer may be eccentric, melancholic, degenerate, neurasthenic, etc.
2. The absence of Motive : Not only does an insane person commit murder without any motive but, he often kills his nearest and dearest relations, e.g. his wife and children. It must, however, be difficult to trace a motive though there may be one. On the other hand, sane persons are known to have committed murders with a motive, however, trifling it may be. Again, a sane person may commit murder on a very trivial excuse. Modi knew of a case in which a young Parsi murdered his sister-in-law with a gandasa (chopper) lying near on the mere ground that she asked him in joke to drink urine in place of water.
3. The absence of Secrecy : The murderer if he happens to be insane, does not try to conceal the body of his victim, nor does he attempt to evade law by destroying evidence of his crime or by running away from the scene of the murder.
4. Multiple Murders : A sane person usually murders only one person with whom he is at enmity or against whom he has a grievance, and does not shed more blood unnecessarily. On the other hand, an insane person may kill several persons, mostly his friends and relatives for whom he has great regard and affection. It is, however, possible for an insane person to have only one as his victim.
5. Want of Preparedness or Prearrangement :- An insane person does not make any pre-arranged plan to kill anybody, but a sane person, as a rule, makes all the necessary preparations prior to committing a crime.
6. Want of Accomplices :- An insane person has no accomplice in the criminal Act. Lunatics in mental hospital never conspire to escape or kill the Superintendent or his assistant."
24th January 1990.
9. In addition to the above grounds, Mr. Sirpurkar heavily relied on the decision reported in 1976 Cri LJ 1978 : In re Balagopal. The portion from para 17 of the judgment, which is material for our purpose is reproduced below :
".... the legal position regarding the 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 providing that always rests upon 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 in S. 84; 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 which rests upon a party in 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 resting on the prosecution has not been discharged."
In view of the above observations of their Lordships of the Supreme Court, Mr. Sirpurkar vehemently contended that in the peculiar facts and circumstances of this case the evidence led by the prosecution raises a reasonable doubt in regard to mens rea of the appellant and, therefore, the appellant will have to be acquitted on the ground that the general burden resting on the prosecution has not been discharged.
10. After giving our anxious consideration to the submissions advanced on behalf of the defence, we feel inclined to hold that the appellant killed the three kids in the fits of lunacy and hence benefit of S. 84 of the Indian Penal Code will have to be extended to the appellant. We have already quoted in para 7 above, the various factors which, in out view, show that the possibility that the appellant killed the three kids in the fits of lunacy cannot be ruled out. It further shows serious lapses on the part of prosecutions in giving up three witnesses, which were cited and who were the close relations of the appellant, without any justification. In case of this type, it was most unfair on the part of the prosecution to give up the important witnesses who would have thrown light on the personal history of the appellant. Normally no sane person can ever think of killing his own grand-children who are still in their fancy. The first information report lodged by Shobha, whose two kids were done to death, is a vital document, which shows that the appellant was getting the fits of lunacy and it was during those fits that he killed the three kids.
11. It is true that the burden of proving insanity lies on the defence, but the same can be established from the facts alleged by the prosecution itself, and in this context the first information report assumes great importance, which almost completely exonerates the appellant. The fact that the appellant has killed his own kith and kin whom he must be loving most is a factor which goes to establish his defence of insanity. The appellant has not tried to conceal the body of his victims, nor he attempted to evade law by destroying the evidence of his crime. It cannot be said that he ran away, though he silently left the house, and it is nobody's case that he was absconding. It is a case of multiple murders of those, whom he loved most. There is no evidence to show that he made any preparation for killing the three kids. These are some of the factors which would show that there could be no mens rea on the part of the appellant and he would be entitled to acquittal on the ground that the general burden resting on the prosecution has not been discharged. We accordingly allow the appeal and set aside the impugned order.
12. In view of our finding that the appellant gets the fits of lunacy intermittently, it may not be safe to set him free forthwith. We therefore, direct the Jail Authorities that the appellant should be sent to the Mental Hospital where he shall be kept under observation and treatment for such period as may be found necessary by the Hospital authorities.
Before parting with the case, we would like to record our appreciation for the valuable assistance Mr. Sirpurkar has rendered and agreed to act as an amicus curiae.
13. Appeal allowed.