Andhra Pradesh High Court - Amravati
Danadu Sambaiah vs The State Of Ap., on 24 December, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
Criminal Appeal No. 946 of 2013
JUDGMENT:(per Hon'ble Sri Justice C.Praveen Kumar)
1) The sole accused in Sessions Case No. 404 of 2011 before the V Additional District & Sessions Judge, Nellore, preferred the present appeal assailing his conviction and sentence in the said Sessions case. The Appellant herein was tried for an offence punishable under Section 302 Indian Penal Code [for short 'IPC'] for causing the death of Dandu Guravaiah [the 'Deceased'] on the intervening night of 16/17.06.2011 at about 3.30 hours at Ponguru Village, Nellore District. By its Judgment, dated 03.08.2019, the learned V Additional District and Sessions Judge, Nellore, found the accused guilty of the said charge and sentenced him to sufer imprisonment for life.
2) The facts, as culled out from the evidence of the prosecution witnesses, are as under:
i. PW2 is the Sister of the deceased, while, other witnesses who are known to accused and deceased are residents of same village. The accused is a son of the deceased who used to sell Thayattulu and give medicine for snake bites in the village. The accused used to 2 demand money from the deceased and whenever he fails to pay the amount, the accused used to threaten him with dire consequences. Out of fear for his life, the deceased used to sleep in the tea stall of LW4, while as some villagers were sleeping on the rachabanda adjacent to the said place. On the date of incident also, the deceased slept in the tea stall of LW4 [Dandu Bala Ramaiah - not examined] and PW3, PW4 and PW5 slept on Rachabanda.
ii. On 17.06.2011 at about 3.30 AM, PW5 and others heard cries as 'Chavu' 'Chavu' from the tea stall. All of them went towards the tea stall and saw the accused beating the deceased with big stone. The deceased suffered severe crush injury resulting in bleeding on his head. The accused told PW5 and others that he killed his father and he will give Rs.100/- to purchase kerosene for burning the body. The information about the incident was given to PW1- VRO of Ponduru village. Immediately, he proceed to the scene of offence, observed the same and thereafter prepared Ex.P1 report and gave it to PW7 at 10.00 AM. Basing on which, a case in Cr. No. 19 of 2011 came to be registered for the offence punishable under Section 302 IPC. Ex.P5 is the FIR. Further investigation was taken up by PW9- Inspector of Police, who on receipt of FIR rushed to the 3 scene of offence and prepared an observation report of the scene and also rough sketch under Ex.P7. He then conducted inquest over the dead body in the presence of the mediators. Ex.P3 is the Inquest Report. During investigation, he recorded the statements of the witnesses. After completing the inquest proceedings, he sent the dead body for postmortem examination. iii. PW8- the Civil Assistant Surgeon at Atmakur conducted autopsy over the dead body of the deceased and issued Ex.P6 -postmortem certificate. According to her, the cause of death was due to shock and haemorage due to head injury.
iv. PW9 continued with the investigation and effected arrest of the accused on 18.06.2011 at Nellorepalem centre at Atmakur.
v. PW10 -Inspector of Police, verified the investigation done by PW9, collected material documents and then filed a charge-sheet, which was taken on file as P.R.C. No.28 of 2011 on the file of the Judicial Magistrate of First Class, Udayagiri. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished and as the case is triable by the Court of Sessions, it was committed to the Court of Sessions under Section 209 Cr.P.C. Basing on the 4 material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, he pleaded guilty.
3) To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Ex.P1 to Ex.P9. After completion of the prosecution evidence, the accused was examined under section 313 Cr.P.C with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, to which, he pleaded guilty. He got marked a portion of Section 161 Cr.P.C. statement of PW5 as Ex.D1.
4) Relying upon the evidence of PW3 to PW5 coupled with medical evidence, the learned Sessions Judge, rejected the plea of insanity taken by the accused. Challenging the same, the present appeal came to be filed by the accused.
5) Sri Krishna Devan, learned Legal-Aid Counsel mainly submits that, the conviction and sentence recorded by the Trial Court is illegal. According to him, no effort was made by the Doctor to find out the mental condition of the deceased or sent him to a Doctor to know his mental state when the evidence on record is to the effect that the accused was insane person. Even otherwise, he would submit that the Appellant herein is entitled for a benefit of doubt under Section 84 IPC. Apart from that, the Counsel would contend 5 that, though, PW3 to PW5 claim to have witnessed the incident, but, none of them in their earlier statements stated that they actually witnessed the incident. Having regard to the above circumstances, the learned counsel would contend that there is no legal evidence available on record to hold the accused guilty under Section 302 IPC.
6) On the other hand, the learned Public Prosecutor would contend that the evidence of PW3 to PW5 is sufficient to hold the accused guilty. According to him, basing on the material available on record, the accused was sent to Government Hospital for Mental Care, Hyderabad vide letter, dated 18.02.2013. Pursuant to which, the accused was kept in observation as inpatient between 14.02.2013 and 25.02.2013 and it was found that between 14.02.2013 till date, the accused was found to be suffering from mental illness, paranoid schizophrenia and was treated with medication;
that his condition has improved a lot; his mental condition is stable and he is fit to stand for trial. Having regard to the above, it is pleaded that, there is no evidence available on record as to the mental state of the appellant at the time of commission of the offence. In the absence of the same, the question of extending any benefit to the accused on the ground that he is insane would not arise. Apart from that, the learned Counsel would contend that, the conduct of the accused does not anywhere indicate that his mental 6 condition was not stable at the time of committing the offence. Thus, pleads that the conviction and sentence imposed by the Trial Court warrants no interference.
7) The point that arises for consideration is "whether the evidence available on record will hold the Appellant guilty under Section 302 IPC, more particularly, having regard to the mental health condition of the Appellant?
8) As seen from the record, the entire case rests on the evidence of PW3 to PW6 and the certificate said to have been issued by the Doctor. Before proceeding further, it is to be noted that the certificate alleged to have been received from the Superintendent of Government Hospital for Mental Care, Hyderabad, wherein, the appellant was found to be suffering with mental illness, paranoid schizophrenia and also the treatment given leading to improvement of his health is not placed on record. Further, it is also to be noted that the accused pleaded guilty when asked about the same at the time of framing the charge. Even during Section 313 Cr.P.C. examination, when the incriminating material was put to him, he stated that the facts narrated by PW3 to PW5 are correct. However, since this being a Sessions Case, the learned Sessions Judge proceeded with the trial.
9) PW1- VRO is said to have set the law into motion. He is also a panch witness for the scene of offence, observation 7 report, inquest and also for arrest of the accused. In the cross-examination, it has been elicited that he enquired with a Talari which revealed that accused killed the deceased and went away. According to him, till he gave the report at 10.00AM, neither the relatives of deceased nor villagers gave police report with regard to the alleged incident. He further states that, accused and deceased were living in the same house. To a suggestion that both of them living separately was denied by him. He further admits that accused is unsound person and villagers were afraid of him. It is pleaded that the accused used to wander from one village to another village; that the accused had a hut in the outskirts of the village and used to sleep in the hut during night time. He further clarifies stating that, now and then, the accused lived with the deceased. All other suggestions given were denied by him.
10) From the evidence of PW1, it is clear that, he is not an eye witness to the incident. He was informed about the incident by someone and basing on which, he lodged a report. There is no reference to any information being furnished to him by PW3, PW4 and PW5 who were examined as eye witnesses to the incident. The Talari who is said to have furnished information is not examined. However, it is admitted in the cross-examination that accused is of unsound mind and the villagers were afraid of him. Further, 8 the accused used to live in a hut separately from the deceased and now and then both of them used to live together. The FIR given by PW1 shows that, the Appellant who is an adopted son of the deceased killed the deceased at 3.30AM by beating him with a boulder on his head by raising cries as 'Die-Die'. On hearing the cries, PW3, PW4, PW5 who were sleeping on a Rachabanda, beside the tea shop, woke up and went towards the shop. The accused is said to have told that them that he killed his father and offered to pay Rs.100/- for purchasing kerosene to burn his father. Thereafter, the above three persons went into the tea shop, saw the dead body of the deceased and being afraid of the same informed the neighbours.
11) PW2 is the sister of the deceased and mother-in-law of the accused. According to her, the deceased is the adopted son of the deceased. The accused used to threaten the deceased stating that he will kill him if money is not paid to him, but, there was no rivalry between them. According to her, even in her presence also the accused used to threaten the deceased. According to her, on the date of the incident, she went to Ponguru village and on the information furnished by LW4 regarding the incident, she came back and saw the dead body of the deceased at the tea stall of LW4. She further states that, accused earlier killed her mother. In the cross- examination, it has been elicited that this witness failed to 9 mention before the police about the threats given by the accused to the deceased and also beating the accused in her presence. In cross-examination, she admits that, accused is not having sound state of mind and the accused and deceased were living separately. She also admits that she did not state before the police that the accused earlier killed her mother. From the evidence of PW2, it is clear that, she was not an eye witness to the incident and she failed to mention about the behavior of the accused towards the deceased in her earlier statements. But, however, she admits that accused is in unsound mind and he was living separately from his father.
12) PW3 is the eye witness to the incident. According to him, he along with two others slept on the Rachabanda adjacent to tea stall of LW4, who is the brother of PW3. The deceased also slept in the tea stall. On hearing the cries of the accused saying that "die - die", PW3 along with others went towards the tea stall and saw the accused beating the deceased with big stone. He further states that the deceased suffered crush head injury and died on the spot. While leaving the spot, the accused told them that he killed his father and that he will give Rs., 100/- to perform last rites. Thereafter, they informed other about the incident. MO.2 is the stone, which is said to have used in killing the deceased. The evidence of PW4 toes in line with that of PW3. 10
13) Before dealing with the evidence on record, it would be useful to note the findings of the learned Trial Judge. A reading of the Judgment makes it clear that the medical examination report of the accused, which was referred to in the Judgment and which talks about the paranoid condition of the accused was not placed on record. The said letter was addressed by the Superintendent of Government Hospital for Mental Care, Hyderabad to the Superintendent of Central Jail. Therefore, this letter which is now sought to be relied upon by the Counsel for the Appellant cannot be looked into, since, the same was not marked during the trial and even the Doctor who is said to have examined the accused was not examined. Even otherwise, the said letter does not indicate that the appellant was schizophrenic when the incident in question took place. On the other hand, it speaks about the observation of the appellant long after the incident and his condition was found to be normal.
14) The other material which is relied upon by the learned counsel for the Appellant to show that the deceased is insane is the admissions in the evidence of PW1 to PW4 and that the villagers were afraid of his unsound mind. According to the National Institute of Mental Health "Schizophrenia" means and includes a chronic and severe mental disorder that affects how a person thinks, feels, and behaves. People with schizophrenia may seem like they have lost touch with 11 reality. Although schizophrenia is not as common as other mental disorders, the symptoms can be very disabling. Paranoid schizophrenia will include Positive symptoms or psychotic behaviors not generally seen in healthy people. People with positive symptoms may lose touch with some aspects of reality. Symptoms include, Hallucinations, Delusions, Thought disorders and Movement disorders.
15) In Surendera Mishra v. State of Jharkhand1 the Hon'ble Supreme Court held that, in law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act and the burden of proof in the face of Section 105 of the Evidence Act is on the accused. It is further held that, though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. It has been held that, even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law.
1 2011 (11) SCC 495 12
16) In Shrikant Anandrao Bhosale v. State of Maharashtra2 the Hon'ble Supreme court held that, the state of mind of the accused at the time of commission of offence is to be proved so as to get the benefit of the exception.
17) Keeping in view of the law laid down by the Apex Court in the Judgments referred to above, we shall now try to assess the evidence and see whether the Appellant was aware as to what he was doing at the time of the offence.
18) It is the case of the accused that he was of unsound mind all through. But, the evidence on record show that though he stayed in a hut in the outskirts of the village, but, at times, he used to come and stay with his father. It is also come on record that there were disputes between father and son and that the accused threatened him with dire consequences whenever the deceased refused to pay money. Being afraid of accused, he at times used to sleep at tea stall. On the date of incident, the accused came to the scene of offence and hit the deceased with a big boulder. After killing the deceased, he told bystanders that he will pay money for the funeral rites of his father. This circumstance show that the accused at the time of commission of offence is not in a state of unsound mind. A person who is of unsound mind 2 2002 (7) SCC 748 13 would not make such statements asking someone to do something which is supposed to be done after the death and also offered money for the expenses to be incurred. Therefore, the plea that the accused was in state of unsoundness mind, at the time of the commission of offence, cannot be accepted. Even assuming that the accused was suffering with unsoundness mind, yet at some intervals, a person of unsound mind may also be of sound mind during intervals and he knows what he is doing. Therefore, killing of his father and then offering money shows that he was not suffering with any mental disorder at the time of the offence. Apart from that, there is evidence on record to show that the accused used to threaten his father with dire consequences including killing him whenever he refused to pay the amount. Therefore, it can be said that the accused had a motive to do away with the deceased as well. Further, the accused has to discharge his initial burden of establishing that he was insane/unsound/schizophrenic at the time of the incident. Mere admission in the evidence of witnesses that he is of unsound mind would not entitle him to claim benefit under Section 84 of IPC.
19) Having regard to the above, it cannot be said that the accused was in a state of unsound mind at the time of the incident and in the absence of any material to that effect and as the burden is on the accused to discharge his initial 14 burden, which he failed, we feel that the finding of the Trial Court warrants no interference.
20) In the result the appeal fails and it is accordingly dismissed, confirming the conviction and sentence passed in Sessions Case No. 404 of 2011 on the file of the V Additional District & Sessions Court, Nellore.
21) Consequently, miscellaneous petitions pending, if any, shall stand closed.
________________________________ JUSTICE C. PRAVEEN KUMAR _______________________ JUSTICE J. UMA DEVI Date: 24.12.2019 SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE MS. JUSTICE J. UMA DEVI Criminal Appeal No. 946 of 2013 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: .12.2019 SM.