Bombay High Court
Ramchandra Shenfadu Patil vs The State Of Maharashtra on 18 December, 2020
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.473 OF 2014
Ramchandra s/o Shenfadu Patil,
Age : 40 years, Occupation : Nil,
R/o Sabgavhan, Tq.Amalner,
Dist.Jalgaon.
At present in Nashik Road Central
Prison, Nashik.
...APPELLANT/ CONVICT
-VERSUS-
The State of Maharashtra.
(Copy to be served on the Public
Prosecutor, High Court of Judicature
of Bombay Bench at Aurangabad).
...RESPONDENT
...
Shri A.M. Gaikwad, Advocate (appointed) for the appellant/ convict.
Shri R.D. Sanap, APP for the Respondent/ State.
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 18th December, 2020
JUDGMENT (Per Ravindra V. Ghuge, J.):-
1. This Criminal Appeal is filed by the appellant (Ramchandra Shenfadu Patil), through the assistance of the High Court Legal Services Sub Committee, Aurangabad. He prays for setting aside the judgment and ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *2* 909apeal473o14 order of conviction dated 28.10.2010 delivered by the learned Additional Sessions Judge, Amalner in Sessions Case No.26/2009. Vide the said judgment, the appellant was held guilty of having committed the offence of murdering his mother (Indubai), punishable under Section 302 of the Indian Penal Code and was, therefore, sentenced to suffer imprisonment for life.
2. We have heard the submissions of the learned advocate for the appellant on 09.12.2020. After the learned prosecutor made his submissions, we had passed the following order on 09.12.2020:-
"1. The submissions of the learned Advocate for the appellant and the learned prosecutor on behalf of the State have been extensively canvassed.
2. The learned Advocate for the appellant has drawn our attention to the judgment delivered by the Honourable Apex Court (three Judges Bench) in the matter of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, AIR 1964 Supreme Court 1563. The said judgment was read out by the learned Counsel extensively. It has been observed in the concluding portion of paragraph 6 of the said judgment "The burden of adducing evidence of the delusion therefore lay on the accused. Suppose that, when all the evidence was in, the jury did not know what to make of the matter. They might suspect the accused to be inventing a tale to cover his guilt, and yet not be reasonably certain about it. In that event the accused would be entitled to an acquittal. The prosecution must prove beyond reasonable doubt not only the actus reus but the mens rea."
3. In paragraph 9, the Honourable Apex Court has held 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 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *3* 909apeal473o14 he was doing what was either wrong or contrary to law. The crucial 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 S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."
4. Having considered the submissions of the learned Counsel and keeping in mind that they have still not concluded, we desire to find out as to what is the state of health of the appellant Ramchandra Shenfadu Patil while being in jail, undergoing his sentence from 2009 till today. We desire this information only for the purpose of guidance keeping in view the contentions canvassed by the appellant and the State on the plea of insanity taken by the appellant.
5. As such, we call upon the learned Prosecutor to ensure that the Superintendent of the Nasik-Road Central Prison, Nasik shall submit a report on the mental health of the appellant ever since he has been lodged in jail from 2009 till 30th November, 2020. The said report shall be placed before us on the next date of hearing.
6. This matter is part-heard.
7. List this appeal for further hearing on 17 th December, 2020 to be called out immediately after the urgent and due admission board is over."
3. Since insufficient record was placed before us on 17.12.2020, we had passed the following order:-
"1. Pursuant to our order dated 09-12-2020, we had called upon the Superintendent of the Nasik - Road Central Prison, Nasik to inform us as regards the mental health of the appellant ever since he has been lodged in jail from 2009 till 30-11-2020. The learned Prosecutor has placed before us a copy of the Medical Report received by him from the Chief Medical Officer, Nasik-Road Central Prison dated 12-12-2020, which is taken on record (three pages) and marked as 'X' for identification.::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 :::
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2. We are not satisfied with the contents of the cryptic report submitted to us, since it does not answer our query.
3. The learned Prosecutor submits that, he would communicate this order to the Chief Medical Officer, Nasik-Road Central Prison/ Jail Superintendent immediately and, by tomorrow, if the convict was ever required to visit any hospital or doctor in relation to alleged mental illness, the medical papers would be produced before this Court.
4. In view of the above, stand over to 18-12-2020 to be called out immediately after the urgent and due admission board is over.
5. Sheristedar copy of this order be supplied to the learned Prosecutor."
4. Today, the learned prosecutor places before us a compilation of 15 pages, which are taken on record and collectively marked as "Y" for identification.
5. It is undisputed that the appellant/ convict had killed his 65 years old mother Indubai on 20.04.2009 at about 04:00 AM. An FIR was lodged by Ravindra Chudaman Patil (PW-1), on 21.04.2020. The informant is the neighbour of the appellant. On the fateful early morning of 20.04.2009, the appellant was residing with his mother in his house. His wife and his two sons had left him and were residing in their maternal home. It is also undisputed that after the informant Ravindra Patil heard loud screams at about 04:00 AM, he and his wife who were sleeping on terrace of their house, woke up and rushed in the direction of the screams. They peeped into the house of the convict through the open window and ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *5* 909apeal473o14 found that the light in the room was switched on and the appellant was beating his mother Indubai by kicking her and giving her fist blows on her head, chest and stomach. The informant, therefore, called the cousins of the appellant, Bhanudas, Satilal and Ratilal and as the appellant was uncontrollable through verbal requests/ commands, they broke open the door and rushed inside the house. By that time, Indubai was lying motionless on the ground and the appellant Ramchandra was silently sitting in one corner of the room. He appeared remorseless.
6. This incident was brought to the notice of the Deputy Sarpanch of the village Shri Sadashiv Patil, who informed the Sarpanch Shri Narendra Patil. The Sarpanch reached the Marwad Police Station and informed the incident. Consequentially, the Marwad Police came to the village Sabgavhan and prepared the inquest panchanama and sent the dead body for postmortem to the Government Hospital at Amalner. Subsequent thereto, the funeral rites of Indubai were performed.
7. The prosecution examined the informant Ravindra Chudaman Patil (PW-1), Latabai @ Lalitabai Ravindra Patil (PW-2), Dr.Rameshchandra Kisan Savkare (PW-3), panch witness Nana Santosh Patil (PW-4), panch witness Tukaram Narayan Patil (PW-5), Satilal Vishram Patil (PW-6) and Ranji Sakharam Dere, Investigating Officer, (PW-
7).
8. As it emerges from the record, no dispute has been raised by ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *6* 909apeal473o14 the appellant as regards Indubai suffering a homicidal death at the hands of the appellant, who is her son. The postmortem report (Exhibit-17) indicates the surface injuries at Sr.No.17 and other injuries at Sr.Nos.18 and 20, as under :-
"17. Surface wounds and injuries:-
1) Lacerated wound on her forehead right side above eyebrow. 2 cm x 1 cm x ½ cm transversely.
2) Lacerated wound on her forehead lateral to eye right. 2 cm x 1 cm x ½ cm."
"18. Other injuries discovered by external examination or palpation as fractures etc.:-
# Ribs both side.
(a) Can you say definitely that the injuries shown against serial Nos.17 and 18 are ante-mortem injuries?
Antemortem."
"20. Thorax:-
(a) Walls, ribs, cartilages :-
# Ribs Right side 3, 4, 5, 6, 7th
# Ribs left side 6, 7, 8th
(b) Pleura :- Conjested haematomas present.
(c) Larynx, Trachea and Bronchi :- Full of blood.
(d) Right lung and (e) Left lung :-
Torned both sides due to # ribs."
9. The appellant had taken a stand of insanity before the Trial Court. Based on material before it, the Trial Court concluded that the appellant did not suffer such mental illness, which would support his stand of insanity under Sections 328 and 329 of the Code of Criminal Procedure. Sections 328 and 329 read as under:-
"328. Procedure in case of accused being lunatic:- (1) When a Magistrate holding an inquiry has reason to believe ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *7* 909apeal473o14 that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.
[(1A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college.] (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.
[(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *8* 909apeal473o14 the manner provided under section 330:
Provided that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section
330.
(4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330.]"
"329. Procedure in case of person of unsound mind tried before Court:-
(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
[(1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *9* 909apeal473o14 may prefer an appeal before the Medical Board which shall consist of--
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college.] [(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330:
Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.
(3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.]"
10. It was canvassed on behalf of the appellant that the trial of the case needs to be suspended since the appellant was not capable of defending himself. The Trial Court, however, arrived at a conclusion that ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *10* 909apeal473o14 the appellant has put forth an unsustainable plea and it did not appear to the Trial Court that he was of an unsound mind before the commission of the offence, at the time of the commission of such offence or after the commission of offence, during trial. Based on such conclusions and since the appellant had not taken a stand that he had not committed the murder, the Trial Court handed down the judgment of conviction and sentenced the appellant to life imprisonment.
11. In the light of the extensive submissions of the learned counsel for the respective sides and in view of the fact that the appellant does not take a stand that he had not murdered his mother or has been framed, we perused the entire record and proceedings and the appeal paper book, threadbare.
12. We have gone through the judgment of the Honourable Supreme Court in the matter of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563, in which, it has been held in paragraphs 1 to 7 and 9 to 14 as under:-
"1. This appeal raises the question of the defence of insanity for an offence under S.302 of the Indian Penal Code.
2. The appellant was the husband of the deceased Kalavati. She was married to the appellant in the year 1958. On the night of April 9, 1959, as usual, the appellant and his wife slept in their bed-room and the doors leading to that room were bolted from inside. At about 3 or 3.30 a.m. on the next day Kalavati cried that she was being killed. The neighbours collected in front of the said room and called upon the ac- cused to open ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *11* 909apeal473o14 the door. When the door was opened they found Kalavati dead with a number of wounds on her body. The accused was sent up for trial to the sessions on the charge of murder. Before the Additional Sessions Judge, Kaira, a defence was set up that the accused was insane when the incident was alleged to have taken place and was not capable of understanding the nature of his act.
3. The learned Additional Sessions Judge considered the entire evidence placed before him, and came to the conclusion that the accused had failed to satisfy him that when he committed the murder of his wife he was not capable to knowing the nature of the act and that what he was doing was either wrong or contrary to law. Having rejected his plea of insanity, the learned Additional Sessions Judge convicted him under S.302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. On appeal the High Court agreed with that finding, though for different reasons, and confirmed the conviction and sentence of the accused. Hence the present appeal.
4. Learned counsel for the appellant contended that the High Court, having believed the evidence of the prosecution witnesses, should have held that the accused had discharged the burden placed on him of proving that at the time he killed his wife he was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. He further contended that even if he had failed to establish that fact conclusively, the evidence adduced was such as to raise a reasonable doubt in the mind of the Judge as regards one of the ingredients of the offence, namely, criminal intention, and, therefore, the court should have acquitted him for the reason that the prosecution had not proved the case beyond reasonable doubt.
5. Before we address ourselves to the facts of the case and the findings arrived at by the High Court, it would be convenient to notice the relevant aspects of the law of the plea of insanity. At the outset let us consider the material provisions without reference to decided cases. The said provisions are:
Indian Penal Code.
Section 299. Whoever causes death by doing an act with the intention of causing death, or with the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *12* 909apeal473o14 intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 84. 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.
Indian Evidence Act.
Section 105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Section 4. "Shall presume": Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved.
"Proved"- A fact is said to be "proved" when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved"- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
Section 101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
It is a fundamental principle of criminal ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *13* 909apeal473o14 jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S.299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under S.105 of the Evidence Act, read with the definition of "shall presume" in S.4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it con- sider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court. such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S.105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S.299 of the Indian ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *14* 909apeal473o14 Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.
6. The textbooks placed before us and the decisions cited at the Bar lead to the same conclusion. In Halsbury's Laws of England, 3rd edn., Vol. 10, at p. 288, it is stated thus:
"The onus of establishing insanity is on the accused. The burden of proof upon him is no higher than which rests upon a party to civil proceedings."
Glanville Williams in his book "Criminal Law", The General Part, 2nd Edn., places the relevant aspect in the correct perspective thus, at p. 516:
"As stated before, to find that the accused did not know the nature and quality of his act is, in part, only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime; and if the crime is one requiring intention or recklessness he must, on the view advanced in this book, be innocent of mens rea. Since the persuasive burden of proof of mens rea is on the prosecution, on question of defence, or of disease of the mind, arises, except in so far as the prisoner is called upon for his own safety to neutralise the evidence of the prosecution. No persuasive burden of proof rests on him, and if the jury are uncertain whether the allegation of mens rea is made out ....... the benefit of the doubt must be given to the prisoner, for, in the words of Lord Reading in another context, "the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner."
This Court in K.M.Nanavati v. State of Maharashtra, (1962) Supp (1) SCR 567 at pp.597, 598 : (AIR 1962 SC 605 at p.617) had to consider the question of burden of proof in the context of a defence based on the exception embodied in S.80 of the Indian Penal ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *15* 909apeal473o14 Code. In that context the law is summarized thus:
"The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under S.105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see Ss.4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Ss.77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of the ingredients of the offence: (see S.80 of the Indian Penal Code)....... In the third case, though the burden lies on the accused to bring his case within the exception the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence."
After giving an illustration, this Court proceeded to state:
"That evidence may not be sufficient to prove all the ingredients of S.80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of S.300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder........ In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused."
What is said of S.80 of the Indian Penal Code will equally apply to S.84 thereof. A Division Bench of the Patna High Court in Kamla Singh v. The State, (S) AIR 1955 Pat 209 invoked the same principle when the plea of insanity was raised. A Division Bench of the Nagpur High Court in Ramhitram v. State of Madhya Pradesh ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *16* 909apeal473o14 (S) AIR 1956 Nag 187 has struck a different note inasmuch as it held that the benefit of doubt which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect the accused with the occurrence and that it had nothing to do with the mental state of the accused. With great respect, we cannot agree with this view. If this view were correct, the court would be helpless and would be legally bound to convict an accused even though there was genuine and reasonable doubt in its mind that the accused had not the requisite intention when he did the act for which he was charged. This view is also inconsistent with that expressed in Nanavati's case (1962) Supp (1) SCR 567 : (AIR 1962 SC 605). A Scottish case, H.M. Advocate v. Fraser (1878) 4 Couper 70, noticed in Glanville Williams' "Criminal Law", The General Part, 2nd Edn., at p. 517, pinpoints the distinction between these two categories of burden of proof. There, a man killed his baby while he was asleep; he was dreaming that he was struggling with a wild beast. The learned author elaborates the problem thus:
"When the Crown proved that the accused had killed his baby what may be called an evidential presumption or presumption of fact arose that the killing was murder. Had no evidence been adduced for the defence the jury could have convicted of murder, and their verdict would have been upheld on appeal. The burden of adducing evidence of the delusion therefore lay on the accused. Suppose that, when all the evidence was in, the jury did not know what to make of the matter. They might suspect the accused to be inventing a tale to cover his guilt, and yet not be reasonably certain about it. In that event the accused would be entitled to an acquittal. The prosecution must prove beyond reasonable doubt not only the actus reus but the mens rea."
7. 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 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *17* 909apeal473o14 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 S.84 of the Indian Penal Code: the accused may rebut it by placing be fore 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."
"9. 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 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 S.84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.
10. The first question is, what is the motive for the appellant to kill his wife in the ghastly manner he did by inflicting 44 knife injuries on her body? Natverlal Atmaram, the father of the deceased Kalavati, was examined as P.W. 13. He said that about 20 days before his daughter was murdered he received a letter from the accused asking him to take away his daughter on the ground that he did not like her, that he went to Bherai with that letter, showed it to Chhaganbhai, the father of the accused, and had a talk with him about it;::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 :::
*18* 909apeal473o14 that Chhaganbhai took that letter from him and promised to persuade the accused not to discard his wife-, that, after a week be again went to Bherai and asked the accused why he did not like the deceased and the accused replied that he did not like her as she was not working properly; and that thereafter he went back to his village and sent a message through someone that he would go to Bherai to take his daughter on Chaitra Sudi 1. The murder took place on the night before Chaitra Sudi 1. In the cross- examination he admitted that he did not tell the police that he' had given the letter to the father of the accused, but he told the Sub- Inspector that he had shown the letter to him. Chhaganlal, the father of the accused, as P.W. 7, no doubt denied that Natverlal gave him the letter written by the accused, but he admitted that Natverlal came to his village 10 or 15 days before the incident to take his daughter away. The evidence of Natverlal that he went to the village of the accused is corroborated by the evidence of P.W. 7. It is, therefore, likely that the accused wrote a letter to Natverlal to take away Kalavati and it is also likely that Natverlal gave that letter to P.W. 7 to persuade his son not to discard his wife. P.W.s 2 to 7 said in the cross-examination that the accused and his wife were on cordial terms, but, as we will indicate later in our judgment, all these witnesses turned hostile in the sessions court and made a sustained attempt to support the case of insanity. That apart, their evidence does not disclose what opportunities they had to notice the cordial relation that existed between the accused and the deceased. The learned Additional Sessions Judge rightly disbelieved their evidence. The learned Additional Sessions Judge, who had seen Natverlal in the witness-box, has accepted his evidence. We, having gone through his evidence. see no reason to differ from the opinion of the learned Additional Sessions Judge. It is also not denied that though the accused was in Ahmedabad for ten months, he did not take his wife with him. We accept the evidence of Natverlal and hold that the accused did not like his wife and, therefore, wanted his father-in-law to take her away to his home and that his father-in-law promised to do so before Chaitra Sudi 1.::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 :::
*19* 909apeal473o14
11. The next question is, what was the previous history of the mental condition of the accused? Here again, the prosecution witnesses, P.W.s. 2 to 7, deposed for the first time in the sessions court that 4 or 5 years before the incident the accused was getting fits of insanity. But all these witnesses stated before the police that the accused had committed the murder of his wife, indicating thereby that he was sane at that time. Further, their evidence is inconsistent with the facts established in the case. During this period, it was admitted by P.W. 7, the accused was not treated by any doctor. Prior to the incident he was serving in Ahmedabad in Monogram Mills for about a year and a half. Though the father of the deceased was staying in a village only a few miles away from the village of the accused and though the betrothal was fixed 5 years before the marriage, he did not know that the accused was insane, for if he had known that such was the mental condition of the accused he would not have given his daughter in marriage to him. It is impossible to conceive that he would not have known that the accused was insane if he was really so, and particularly when it is the case of the accused that it was not kept secret but was well known to many people and to some of the witnesses, who came to depose for him. A month and a half prior to the incident Chhaganlal had gone to Ahmedabad for medical treatment and during that period the accused came from Ahmedabad to manage his father's shop in his absence. The fact that he was recalled from Ahmedabad was not disputed: but, while Natverlal said that the accused was recalled in order to manage Chhaganlal's shop in his absence, Chhaganlal said that he was recalled because he was getting insane. The best evidence would have been that of the relative in whose house the accused was residing in Ahmedabad. But the relative was not examined. It appears to us that the accused was serving in Ahmedabad in Monogram Mills and he was asked to come to the village of his father to attend to the latter's business a month and a half before the incident, as the father was leaving for Ahmedabad for medical treatment. Before the commencement of the trial in the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *20* 909apeal473o14 sessions court on June 27, 1959, an application was filed on behalf of the accused, supported by an affidavit field by the father of the accused, praying that, as the accused had become insane, he should be sent for proper medical treatment and observation. In that affidavit it was not stated that the accused was getting fits of insanity for the last 4 or 5 years and that he had one such fit at that time. If that was a fact, one would expect the father to allege prominently the said fact in his affidavit. These facts lead to a reasonable inference that the case of the accused that he had periodical fits of insanity was an afterthought. The general statements of witnesses, P.W.s 1 to 6 that he had such fits must, therefore, necessarily be false. We. therefore, hold that the accused had no antecedent history of insanity.
12. Now coming to the date when the incident took place, P.W. 7, the father of the accused, said that the accused was insane for 2 or 3 days prior to the incident. His evidence further discloses that he and his wife had gone to Ahmedabad on the date of the incident and returned in the same evening. If really the accused had a fit of insanity a day or two before the incident, is it likely that both the parents would have left him and gone to Ahmedabad? To get over this incongruity P.W. 7 said that he went to Ahmedabad to see a bridegroom for his daughter and also to get medicine for the accused. But he did not say which doctor he consulted and wherefrom he purchased the medicines or whether in fact he bought any medicines at all. If the accused had a fit of insanity. is it likely that the wife would have slept with him in the same room? We must, therefore, hold that it had not been established that 2 or 3 days before the incident the accused had a fit of insanity.
13. Now we come to the evidence of what happened on the night of the incident. Nobody except the accused knows what happened in the bed-room. P.W.s 2 to 7 deposed that on the 10th April, 1959, corresponding to Chaitra Sudi 1, between 3 and 4 a.m. they heard shouts of the deceased Kalavati to the effect that she was being killed; that they all went to the room but found it locked from inside; that when the accused was asked to ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *21* 909apeal473o14 open the door, he said that he would open it only after the Mukhi (P.W. 1) was called; that after the Mukhi came there, the accused opened the door and came out of the room with a blood-stained knife in his hand; that the accused began talking irrelevantly and was speaking "why, you killed my mother?" "why, you burnt my father's house?"; that afterwards the accused sat down and threw dust and mud at the persons gathered there; and that he was also laughing without any cause. In short, all the witnesses in one voice suggested that the accused was under a hallucination that the deceased had murdered his mother and burnt his father's house and, therefore, he killed her in that state of mind without knowing what he was doing. But none of these witnesses had described the condition of the accused immediately when he came out of the room, which they did so graphically in the sessions court, at the time when they made statements before the police. in effect they stated before the police that the accused came out of the room with a blood-stained knife in his hand and admitted that he had murdered his wife; but in the witness-box they said that when the accused came out of the room he was behaving like a mad man and giving imaginary reasons for killing his wife. The statements made in the depositions are really inconsistent with the earlier statements made before the police and they are, therefore, contradictions within the meaning of S.162 of the Code of Criminal Procedure. We cannot place any reliance on the evidence of these witnesses; it is an obvious development to help the accused.
14. The subsequent events leading up to the trial make it abundantly clear that the plea of insanity was a belated after thought and a false case. After the accused came out of the room, he was taken to the chora and was confined in a room in the chora. P.W. 16, the police sub- inspector, reached Bherai at about 9.30 a.m. He interrogated the accused, recorded his statement and arrested him at about 10.30 a.m. According to him, as the accused was willing to make a confession, he was sent to the judicial magistrate. This witness described the condition of the accused when he met him thus:::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 :::
*22* 909apeal473o14 "When I went in the Chora he had saluted me and he was completely sane. There was absolutely no sign of insanity and he was not behaving as an insane man. He was not abusing. He had replied to my questions understanding them and was giving relevant replies. And therefore I had sent him to the Magistrate for confession as he wanted to confess."
There is no reason to disbelieve this evidence, particularly when this is consistent with the subsequent conduct of the accused. But P.W. 9, who attested the panchnama, Ex. 19, recording the condition of the accused's body and his clothes, deposed that the accused was murmuring and laughing. But no mention of his condition was described in the panchnama. Thereafter, the accused was sent to the Medical Officer, Matar, for examination and treatment of his injuries. The doctor examined the accused at 9.30 p.m. and gave his evidence as P.W. 11. He proved the certificate issued by him, Ex. 23. Nothing about the mental condition of the accused was noted in that certificate. Not a single question was put to this witness in the cross-
examination about the mental condition of the accused. On the same day, the accused was sent to the judicial Magistrate, First Class, for making a confession. On the next day he was produced before the said Magistrate, who asked him the necessary questions and gave him the warning that his confession would be used against him at the trial. The accused was given time for reflection and was produced before the Magistrate on April 13, 1959. On that date he refused to make the confession. His conduct before the Magistrate, as recorded in Ex. 31, indicates that he was in a fit condition to appreciate the questions put to him and finally to make up his mind not to make the confession which he had earlier offered to do. During the enquiry proceedings under Ch. XVIII of the Code of Criminal Procedure, no suggestion was made on behalf of the accused that he was insane. For the first time on June 27, 1959, at the commencement of the trial in the sessions court an application was filed on behalf of the accused alleging that he was suffering from an attack of insanity. On June 29, 1959, the Sessions Judge sent the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *23* 909apeal473o14 accused to the Civil Surgeon, Khaira, for observation. On receiving his report, the learned Sessions Judge, by his order dated July 13, 1959, found the accused insane and incapable of making his defence. On August 28, 1959, the court directed the accused to be sent to the Superintendent of Mental Hospital, Baroda, for keeping him under observation with a direction to send his report on or before September 18, 1959. The said Superintendent sent his report on August 27, 1960, to the effect that the accused was capable of understanding the proceedings of the court and of making his defence in the court. On enquiry the court held that the accused could understand the proceedings of the case and was capable of making his defence. At the commencement of the trial, the pleader for the accused stated that the accused could understand the proceedings. The proceedings before the Sessions Judge only show that for a short time after the case had commenced before him the accused was insane. But that fact would not establish that the accused was having fits of insanity for 4 or 5 years before the incident and that at the time he killed his wife he had such a fit of insanity as to give him the benefit of S.84 of the Indian Penal Code. The said entire conduct of the accused from the time he killed his wife upto the time the sessions proceedings commenced is inconsistent with the fact that he had a fit of insanity when he killed his wife."
13. It is thus, concluded by the Honourable Supreme Court that in view of Sections 84 and 299 of the Indian Penal Code and Sections 101 and 105 of the Indian Evidence Act, if an accused, at the time of commission of the offence/ act, by reason of unsoundness of mind, was incapable of knowing the nature of his act or understanding what he was doing was either wrong or contrary to law, he would have the benefit of such unsoundness of mind. If the material before the Court in the form of ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *24* 909apeal473o14 oral and documentary evidence satisfies the test of a prudent man, the accused can be said to have discharged his burden. If the judge has a reasonable doubt, he has to acquit the accused. It was further concluded that the Court should not feel helpless and would not be legally bound to convict an accused when there is a genuine and reasonable doubt in it's mind that the accused did not have the intention of causing the death of a person for which he has been charged. It was then held that the burden of adducing evidence of the delusion lay on the accused. The prosecution must prove beyond reasonable doubt, not only the actus reus but the mens rea. If this burden is discharged, the accused would be entitled for an acquittal.
14. Considering the peculiar facts and circumstances as recorded above, we find it appropriate to analyze the evidence before us in order to assess the stand of insanity taken by the appellant in his defence. As recorded above, not only has the homicidal death of Indubai been proved, the accused had not taken a stand that he had never committed the crime or that he was framed. The record also reveals that there was no family feud, much less a dispute between the deceased Indubai and the appellant. There was no sharing of property issue between them. In short, the prosecution has not brought any evidence before the Trial Court indicating that the appellant had a motive to kill his 65 year old mother.
15. PW-1 Ravindra, who is the neighbourer of the appellant, has ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *25* 909apeal473o14 denied that the appellant was mentally ill for about 10 to 15 years prior to the commission of the offence or that he was taking treatment for the last about 12 to 13 years. He, however, admitted in his cross-examination that he was shouting to the appellant to stop assaulting Indubai, which fell on deaf ears. He further stated that he is unable to say whether, the behaviour of the appellant was unpredictable or whether, the appellant was unable to understand his own behaviour. At the end of the cross- examination, the Trial Court felt that as the defence of the appellant is of unsoundness of mind, it invoked Section 329 of the Code of Criminal Procedure and referred the appellant to the District Civil Surgeon for examination. The report of the Civil Surgeon dated 23.08.2010 indicates that the doctor found the appellant to be within normal limit and was not active psychopathology.
16. PW-2 (Latabai @ Lalitabai Ravindra Patil), wife of PW-1, admitted that the appellant Ramchandra was related to their family and she knew that he was mentally sick for the last 10 to 15 years. He was given treatment in the Jalgaon Hospital as well as in the Thane Mental Hospital. He was released from the Thane Mental Hospital just three months prior to the date of the offence.
17. PW-3 (Dr.Rameshchandra Savkare), autopsy surgeon, has explained in details the injuries suffered by the deceased Indubai and her cause of death, which was haemorrhagic shock due to fractured ribs and ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *26* 909apeal473o14 trauma over the chest, abdomen and stomach. He explained that kicks and fist blows could have caused the death of Indubai. He denied that the injuries suffered by Indubai, could have been caused if she would have fallen from a height of 16 to 17 feet.
18. PW-6 (Satilal Vishram Patil) is the cousin of the appellant. After PW-1 rushed to inform him that the appellant was mercilessly beating his mother, he rushed to the scene along with his two brothers Ratilal and Bhanudas and broke open the door to enter the house. By that time, Indubai was lying motionless and the appellant was calmly sitting in the corner in the same room. He made no attempt to flee or escape. PW-6 categorically admitted in his cross-examination that he and his relatives were feeling harassed due to the unsoundness of mind of the appellant.
19. PW-7 (Ranji Dere), Investigating Officer, has proved the FIR and the spot panchanama. He admitted in cross-examination that vide letter dated 21.04.2009 (Exhibit-26), the appellant was referred to the Medical Officer. He was again produced before the Cottage Hospital, Amalner for medical examination on 22.04.2009.
20. We find that the Medical Superintendent, Regional Mental Hospital, Thane had addressed the Superintendent, Jalgaon District Prison, Class-II, vide communication dated 12.06.2009, that the appellant was admitted in the Thane Mental Hospital for treatment on 05.06.2009. He was examined by a panel of 08 doctors and it was concluded that the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *27* 909apeal473o14 appellant was not capable of making his defence. He appeared dull, uncooperative, poor in communications and was declared unfit for discharge. This was pursuant to the order of remand of the learned Magistrate. We have also perused the order dated 02.05.2009 passed by the learned Judicial Magistrate First Class, Amalner concluding that the report of the Civil Surgeon, Jalgaon dated 30.04.2009 (which is 10 days after the commission of the crime), indicates that the appellant is found to be suffering from a mental disease. Without his fitness, the investigation of the said crime cannot be proceeded with. It was necessary to refer him to the Mental Hospital at Thane and by the same order, the learned Magistrate ordered that "the lunatic/ accused Ramchandra Shenphadu Patil be sent there for necessary treatment. Whenever he found to be fit, his custody be handed over to the Superintendent, District Jail, Jalgaon and an intimation regarding the same be sent over to the Superintendent, District Jail, an intimation regarding the same be sent to this Court. Issue reception order accordingly."
21. The documents appearing at page Nos.84 to 101 indicate that the appellant was being treated, off and on, for his mental ailments. The eight doctors panel had finally submitted it's report dated 13.05.2009 that the appellant was not capable of making his defence and was unfit for discharge.
22. We do find from the record that the learned advocate for the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *28* 909apeal473o14 defence before the Trial Court has not taken sufficient efforts in placing before the Trial Court the treatment papers of the appellant since it had come on record that he was being treated for his mental ailment over a period of about 10 to 15 years prior to the date of the incident. Nevertheless, keeping in view the judgments delivered by the Honourable Supreme Court in Dahyabhai Thakkar (supra) and Shrikant Anandrao Bhosale vs. State of Maharashtra, AIR 2002 SC 3399 and the judgments of this Court in the matters of Suryakant J. Gawde vs. State (through Ponda Police Station), 2020 (1) Bom.C.R. (Cri.) 884 and Balaji Kishan Nagarwad vs. State of Maharashtra, 2019 (3) Mh.L.J. (Cri) 116 , we found it appropriate to direct the learned prosecutor to place before us the mental health status of the appellant ever since he was lodged in the Nashik Central Jail on 30.10.2010. Exhibit Y, collectively are the documents placed before us by the learned prosecutor under instructions from the Chief Medical Officer, Nashik Road Central Prison.
23. The medical prescriptions and the dosage of medicines are also before us, which indicate that the appellant was admitted in the Thane Mental Hospital from 05.05.2009 to 25.06.2009 and in the Civil Hospital, Jalgaon from 21.08.2010 to 23.08.2010. He was continuously prescribed anti-psychotic medicines. On 15.06.2013, the Medical Officer of the Prison Hospital sent the appellant to the Civil Hospital, Nashik for an opinion and the Psychiatric, upon examination of the appellant, ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *29* 909apeal473o14 directed that he should be on medicines and continued to take them. The appellant was examined on 05 occasions in between August, 2014 and December, 2014 and his medication and treatment for the psychiatric illness was continued. On 18.09.2018, the Psychiatrist from the Nashik Civil Hospital visited the Nashik Road Central Prison and examined the appellant. He was found stable and the Medical Officer advised the discontinuation of anti-psychotic medicines from 18.09.2018. Today, the appellant is taking symptomatic medicines from the Prison Hospital and is working as a watchman.
24. Exhibit-26 is the certificate issued by the Medical Officer of the Primary Health Centre, Marwad, Taluka Amalner, District Jalgaon dated 21.04.2009 (the day after the murder occurred), which indicates that the concerned doctor found the appellant being irritable, was talking irrelevant (irrelevant speech) and was not oriented. The doctor expressed a view that the appellant appears to be suffering from psychosomatic disorder. He was advised further investigation for advice and medical opinion at pre-arrest stage. We also find that the certificate issued by the Medical Superintendent of the Regional Mental Hospital, Thane (certificate of discharge under Section 40-II, Chapter V of the Mental Health Act, 1987) dated 21.09.2009, indicates that the appellant was admitted in the hospital on 25.11.2008 as per the order issued by the Judicial Magistrate, First Class, Amalner and was discharged from the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *30* 909apeal473o14 hospital on 21.01.2009. We also find the medical prescriptions dating back to 24.01.2006, 03.03.2006, medical report dated 12.02.2002 when the appellant was only 26 years of age, in the record and proceeding which was before the Trial Court, indicating the treatment administered to the appellant and the medicines that were administered to him.
25. It is thus, trite law that an accused, if found to be suffering from unsoundness of mind prior to the commission of the offence, at the time of the commission of offence and subsequent thereto, he would be entitled to acquittal in view of Section 84 of the Indian Penal Code and Sections 101 and 105 of the Indian Evidence Act.
26. It requires no debate that the onus and burden of proving legal insanity when such a plea is taken, would lie on the accused and if he reasonably discharges the burden, the conclusion would be that he was incapable of knowing the nature of his act or the repercussions / effects of his wrongful act as he is unable to discern between the right and the wrong. The benefit under Section 84 would be available to the accused only after the above stated circumstances have been proved. The circumstances preceding the crime, committing the crime and following the crime, are also legally significant, is the view taken in Dahyabhai Thakkar (supra).
27. In Shrikant Anandrao Bhosale (supra) , the Honourable Supreme Court held that the following circumstances were established in ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *31* 909apeal473o14 the said case:-
(a) The appellant has a family history of psychiatric illness.
(b) Cause of ailment not known, hereditary plays a part.
(c) Accused was being treated for unsoundness of mind since 1992 as he was diagnosed to be suffering from paranoid schizophrenia. Within a short span soon after the incident from 27.06.1994 to 05.12.1994, he had to be taken for treatment for the ailment, 25 times to the hospital.
(d) Accused was under regular treatment for the mental ailment.
(e) The motive of killing of wife was weak being that she was opposing his idea of resigning as a Police Constable.
(f) Killing a wife in day light and making no attempt to hide or run away.
28. In Suryakant Gawde (supra), the accused had wrongfully confined his aged mother and had assaulted her with a stone and caused injuries on her body resulting in her death. He was being treated for hallucination which is a mental disorder wherein the patient is either likely to cause harm to others or is likely to harm himself.
29. In Balaji Kishan Nagarwad (supra), the accused was found to be suffering from attacks of lunacy and was taking psychiatric treatment. The only motive for killing the deceased was that the deceased was asked ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *32* 909apeal473o14 for a free Pepsi by the accused and when the deceased denied to give a free Pepsi, the accused picked up a stone and lynched the deceased.
30. In the case in hand, as noted above, the witnesses produced by the prosecution have stated that the appellant was suffering from mental illness for about 10 to 15 years. PW-2, who is the wife of the first informant PW-1, in the backdrop of her husband having denied any knowledge about the mental illness of the appellant, specifically stated that he was of an unsoundness mind for about 10 to 15 years. PW-6 has also stated, by using the word "WE" indicating he and some more persons felt harassed by the unsoundness of mind of the appellant.
31. Considering the entire evidence before us, we find that PW-1 was not a truthful witness. If his wife and other witnesses deposed about the mental illness of the appellant and if the medical papers indicate that the appellant was being treated for more than 15 years, ever since he was 26 years of age as per the available record, it is obvious that PW-1 has suppressed this aspect since it is unassumable that PW-1 alone did not know about the mental illness of the appellant when the entire village knew about it.
32. In Balaji Kishan Nagarwad (supra), this Court has specifically observed that the observations made in judicial orders based on medical papers before the Court, would permit the Court to peruse such medical papers. As such, our reference to certain medical papers appearing in the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *33* 909apeal473o14 record and proceedings, though not exhibited, is justified as they were considered by the Trial Court when interlocutory judicial orders were passed during the remand and trial. We confirm that the reason why we asked for the mental health status of the appellant ever since he was lodged in jail upon conviction, was to find out whether, the appellant, as observed in Dahyabhai Thakkar (supra), may be inventing a tale to cover his guilt or may be pretending to be suffering from unsoundness of the mind. We are satisfied with the direction that we issued to the Medical Authorities of the Nashik Jail to produce the medical record, as it clearly indicates that the appellant had a history of psychiatric illness prior to the commission of the offence and immediately after such commission, till 18.09.2018. This establishes that if the illness for a decade prior to the incident is to be taken into account, the appellant has been under treatment and was on anti-psychotic medicines for more than two decades.
33. In view of the above, this Criminal Appeal is allowed with the following order :-
(a) The impugned judgment and order dated 27/28.10.2010 delivered by the learned Additional Sessions Judge, Amalner in Sessions Case No.26/2009, is quashed and set aside and the conviction recorded therein against the appellant (Ramchandra Shenfadu Patil) is also quashed and set aside by ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 ::: *34* 909apeal473o14 extending him the benefit of Section 84 of the Indian Penal Code.
(b) We direct the learned Additional Sessions Judge, Amalner, who decided Sessions Case No.26/2009, to follow the procedure laid down under Section 335 of the Code of Criminal Procedure.
34. Since the learned advocate for the appellant was appointed through the High Court Legal Services Sub Committee, Aurangabad, we deem it appropriate to quantify his fees as Rs.20,000/- (Rupees Twenty Thousand).
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.) ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 10:05:32 :::