Bombay High Court
Motiram Maroti Dhule vs State Of Maharashtra on 8 July, 2002
Equivalent citations: 2003BOMCR(CRI)~, (2002)4BOMLR323, 2002(3)MHLJ882
Author: R.K. Batta
Bench: R.K. Batta, V.M. Kanade
JUDGMENT R.K. Batta, J.
1. The appellant was tried for murder under Section 302 of the Indian Penal Code. The prosecution had examined ten witnesses in support of the charge. The trial Court accepted the eye witness account of the witnesses examined by the prosecution and after rejecting the plea of insanity raised by the appellant, found him guilty of the charge of murder under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. The period of detention undergone by him in connection with the offence was ordered to be set off in terms of Section 428 of the Code of Criminal Procedure. The appellant challenges the said conviction and sentence in this appeal.
2. Though the learned Advocate for the appellant assailed the evidence of the eye witnesses yet the substantial arguments were advanced before us in connection with the plea of insanity taken by the appellant which according to the learned Advocate for the appellant had been wrongly rejected even though there was an ample evidence on record in support of the said plea.
3. Learned Advocate for the appellant urged before us that the appellant had examined his father and brother who had spoken of the mental condition of the appellant prior to the incident; that the circumstances at the time of commission of the offence clearly establish that the appellant not only did not know the nature of the act but he was incapable of knowing as to what he was doing was either wrong or contrary to law since the appellant was suffering from unsoundness of mind. We shall refer to the circumstances pointed out by him while dealing with this aspect on merit. He also pointed out that the appellant neither made any attempt to conceal the commission of the crime nor he tried to abscond and that even subsequently the appellant was found to be suffering from lunacy by the Civil Surgeon to whom he was referred during the course of the trial. He, therefore, contends that in the light of the evidence on record, it is not possible to attribute mens rea to the appellant and that the act of the appellant is an instance of unsoundness of mind falling under Section 84 of the Indian Penal Code.
4. On the other hand, learned A .P. P. urged before us that the prosecution through the evidence of eye witnesses has been able to establish that the appellant had mens rea while assaulting the deceased and he was aware not only of the nature of the act but that he was doing was wrong or contrary to law. According to the learned A.P.P., no medical evidence has been produced prior to the commission of the crime and the evidence of the relations of the appellant who have been examined cannot be given much credence. He also pointed out that the Civil Surgeon had examined the appellant after about six months of the incident and as such not much weight can be given to the said report and especially when subsequently the appellant was fit to stand for a trial as per the report of the Medical Superintendent of the Mental Hospital who is a specialized person to give opinion in such matters. According to the learned A. P. P. no case under Section 84 of the Indian Penal Code has been made out and the appeal is liable to be rejected.
5. We have examined the record in the light of the rival contentions advanced before us.
6. The prosecution had examined a number of eye witnesses to prove the assault and in order to examine whether the appellant had required mens rea for the commission of the crime or that his case is covered under Section 84 of the Indian Penal Code, it is necessary to briefly refer to the evidence account of the witnesses.
7. PW-3, Diwakar Raut has stated that the appellant called the deceased in his house and the deceased went in the house of the appellant. After about an hour, PW-5 heard shouts of the quarrel from the house of the appellant and as such he rushed to the house of the appellant where he found that the appellant was hitting the head of Sakharam on the stone and Sakharam fell unconscious. The appellant, thereafter, went inside the house and brought a sickle and dragged the deceased on the road and started hitting him with the sickle. The garments of the appellant and the sickle carried by him had blood stains. The appellant went to the door of his house and then he shouted by saying that if he had an axe or sword he could have killed about two to four persons more.
8. PW-4, Janabai Dhule has stated that she heard the shouts of quarrel from the house of the appellant and when she came out from the house, she saw that the appellant dragging the deceased and hitting him with stones on account of which the deceased became unconscious. The appellant then went inside the house, brought a sickle and started causing blows extensively to the deceased. This witness is the relative of the appellant and she has stated in the cross-examination that the appellant does not work and resides at home.
9. PW-5, Ramesh Wandale has stated that many persons had gathered in front of the house of the appellant and he noticed that the appellant was causing injuries with a sickle to the deceased who had sustained several injuries.
10. The last eye witness examined by the prosecution is PW-6 Sanjaysingh Rajput, who has stated that he heard shouts of quarrel and rushed to see the scuffle between the appellant and the deceased in front of the house of the appellant. The appellant dragged the deceased out of the house and brought him near the road. The appellant then caught hold of the head of the deceased and started hitting on the stone for two three times. Sakharam became unconscious. The appellant, went inside the house, brought a sickle and started hitting the blows on the deceased on all parts of his body mercilessly. The appellant then sat at the door of his house, holding a sickle in his hand. There were blood stains on the sickle and on his garments.
11. The facts which emerge from the deposition of eye witnesses PW-3 to PW-6 are that the appellant had called the deceased inside the house and there was a quarrel between them inside the house. The appellant was found hitting the head of Sakharam on stone due to which Sakharam fell down unconscious. Then the appellant dragged Sakharam outside the house, brought a sickle from the house and started hitting him with sickle on the road in the presence of large number of persons who had gathered there. The appellant had blood stains on his clothes as also sickle. After assaulting the deceased, he went and sat at the door of his house with the sickle in his hand and shouted that if he had an axe or sword he could have killed about two to four persons more. All these circumstances do point out that behaviour of the appellant was not that of normal person. In case the appellant wanted to kill the deceased, he could have killed the deceased inside the house itself and, therefore, there was no necessity for him to bring the deceased outside the house when he was already unconscious and then bring a sickle from the house and further assault him with the sickle till he died. There were blood stains on his clothes and the sickle, large number of people had gathered there, but in spite of this, the appellant sat with sickle in his hand at the door of his house and shouted that if he had any axe or sword, he could have killed about two to four persons more. PW-4 has stated that the appellant was not doing any work and was residing at home.
12. The appellant had led evidence of his father and brother to show that he was mentally unsound for some time prior to the commission of the crime. In this respect, the defence had examined two witnesses, DW-1 brother of the appellant and DW-3 father of the appellant. DW-1 Narayan Dhule has stated that the appellant got married on 17-5-1995 and his wife left him in the month of August 1995. He further stated that the appellant was not behaving in normal way; used to watch constantly; he used to abuse anybody; he used to speak to himself; he used to keep himself away for days together; he used to roam anywhere; he used to demand food from anybody and that he had been taken by him to Dr. Deepak Kelkar of Akola where he was admitted in the hospital for 8 to 10 days. He, further, stated that during the stay in the hospital, he was given four to five shocks and after he discharged from the hospital, again after 15 days he had been taken to Dr. Deepak Kelkar and that time also he was admitted and given shock. He has further stated that the appellant had collected the case papers of the treatment to his house and destroyed them in fire with the other papers including an identity card of his mother. He, further, states that the appellant had put fire to his own garments. This evidence substantially remained intact even though he was cross examined by the learned A.P.P. The testimony of this witness could not be shaken during the cross examination and there is no reason as to why this testimony should be discarded.
13. The testimony of DW-1 gets corroboration from the evidence of father of the appellant who has stated that the appellant was behaving like a lunatic for which he was taken to Dr. Deepak Kelkar. He has, further, stated that the appellant used to abuse everybody; he even once tried to hit him with stones; he used to stay away from the house for days together; he burnt the case papers of the treatment of Dr. Deepak Kelkar and his wife left him due to lunacy.
14. In fact, the defence examined Dr. Deepak Kelkar, but he stated that he had not preserved any records of the patients who were admitted in his hospital. He was not able to say whether he had examined the appellant or that he was admitted in his hospital since according to him he did not remember the same.
15. The appellant, in his statement under Section 313 of the Code of Criminal Procedure, had also stated that he had suffered loss in business due to which he lost mental balance. His wife had deserted him and he was staying alone and that he did not know how the incident had taken place. He produced the petition of divorce filed by his wife on the ground of mental disorder. The said petition is on record in which the wife of the appellant has stated that since the beginning the appellant was suffering intermittently from mental illness and in particular mental disorder and he used to mercilessly beat her on account of which she left the house of the petitioner in the month of July 1995.
16. The appellant was examined during the course of the trial by the Civil Surgeon on 14-8-1996. After examination, the Civil Surgeon found :
(a) Appearance Vacant look. (b) Orientation Not well oriented. (c) Memory Poor. (d) Content of thought Poor. (e) Habits Irregular. (f) Answer Irrelevant. (g) Speech Irrelevant.
on the basis of which, the Civil Surgeon came to the conclusion that the appellant was a lunatic. However, subsequently he was examined by the Medical Superintendent, Regional Mental Hospital, Nagpur on 2-1-1997. The report is at Exh. 3 on the original record which shows that the appellant was admitted on 10-9-1996 that is to say after the report of the Civil Surgeon. It was found that the appellant was untidy, restless, argumentative and affect shallow. He was declared fit to stand trial.
17. The Apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, , has laid down that while considering the plea of insanity put on behalf of the accused the Court has to consider the circumstances which preceded, attended and followed the crime. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed and whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code. The same can only be established from the circumstances which preceded, attended and followed the crime. It is well settled that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as to bring him within the scope and ambit of Section 84 of the Indian Penal Code is on the accused who claims benefit of the same. It is also settled position of law that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved and mere ipse dixit of the accused is not enough for availing of the benefit of the exception under Chapter IV. These principles have been laid down by the Apex Court in State of M. P. v. Ahmadutla, . The Apex Court in T. N. Lakskmaiah v. State of Karnataka, , has laid down that in a case where the exception under Section 84 of the Indian Penal Code is claimed, 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 is doing what is either wrong or contrary to law. It is further pointed out therein that the entire conduct of the accused from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought. The burden which the accused has to discharge is on the basis of preponderance of the evidence which should satisfy the standard of a 'prudent man'. If on the basis of material on record there is a reasonable doubt in the mind of the judge that the appellant is able to probablise his plea of unsoundness of mind as required under Section 84 of the Indian Penal Code, the accused has to be acquitted.
18. Applying principles of law laid down by the Apex Court to the facts of this case including the evidence of eye witnesses to whom we have already made a reference, the defence evidence as also the reports of the Civil Surgeon and the Medical Superintendent of the Regional Mental Hospital, Nagpur, we are firmly of the view that the appellant is entitled to the benefit of exception under Section 84 of the Indian Penal Code since the element of metis rea is lacking and the appellant had acted on account of unsoundness of mind on account of which he was incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. The evidence of DW-1 and DW-3; petition filed by the wife of the appellant as also 313 statement of the appellant show that the appellant, was suffering from unsoundness of mind prior to the incident. At the time of the incident the manner in which the crime is committed by bringing deceased from inside the house, then bringing sickle and assaulting him till death, the assault was committed in full view of large number of persons who had gathered, the appellant then sitting at the door with blood stained sickle and clothes and shouting that if he had axe or sword he could have killed two to four persons, no attempt of concealment or running away shows that at the time of commission of offence he was of unsound mind. Subsequent to commission of crime also Civil Surgeon found him to be lunatic. In view of this, the conviction of the appellant for the offence under Section 302 of the Indian Penal Code cannot be maintained and the appellant has to be acquitted. Nevertheless, on the basis of evidence on record, we find that the appellant had committed the acts in question namely the assault on the deceased resulting in his death and but for the case of the appellant falling under Section 84 of the Indian Penal Code the said acts would constitute offence of murder.
19. Keeping in view the facts and circumstances of this case and the provisions of Sections 335 and 338 of the Code of Criminal Procedure, we are of the opinion that the appellant be ordered to be detained in the safe custody in terms of Section 335(l)(a) of the Code of Criminal Procedure and at this stage keeping of the appellant with any relative or friend as such does not arise.
20. Section 335 of Criminal Procedure Code gives two options to the Magistrate or the Court, to deal with such persons in accordance with Clauses (a) and (b) of Sub-section (1) under which such person may be ordered to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit or he be ordered to be delivered to any relative or friend of such person. In accordance of Sub-section 4 of Section 335, the Magistrate or Court is required to report to the State Government the action taken under Sub-section (1). Section 336 of Criminal Procedure Code gives power to the State Government to empower the Officer in charge of the jail in which a person is confined under the provisions of Sections 330 or 335 to discharge all or any of the functions of the Inspector General of Prisons under Sections 337 and 338 of the Code. Section 338 deals with procedure where lunatic detained is declared fit to be released. It provides that if such person is detained under the provisions of Sub-section (2) or Section 330, or Section 335 and such Inspector General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum, if he has not been already sent to such an asylum; and in case it orders him to be transferred to an asylum, may appoint a Commission, consisting of a judicial and two medical officers. Sub-section (2) provides that such Commission shall make a formal inquiry into the state of mind of such, person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit. Section 339 of Criminal Procedure Code provides that whenever any relative or friend of any person detained under the provisions of Sections 330 and 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of State Government, that the person delivered shall be properly taken care of and prevented from doing injury to himself or to any other person; to produce for inspection of such officer, and at such times and places, as the State Government may direct.
21. In view of the above, we direct that the petitioner shall be kept in safe custody for the present in Amravati Jail till the State Government takes action in the matter who may decide where the appellant is to be kept pending action under Sections 338 or 339 of Criminal Procedure Code as the exigency of the case may require. While taking decision, the State Government shall have due regard to the examination of the appellant by Civil Surgeon/Head of Mental Hospital/Head of Psychiatry Department and report by the said authority. The order passed today be communicated to the State Government in terms of Section 335(4) for taking further action in terms of Sections 338 and 339 of Criminal Procedure Code. A copy of this judgment shall also be sent to the Inspector General of Prisons who is empowered in terms of Section 336 to perform and discharge the functions under Sections 337 and 338 of Criminal Procedure Code for further necessary action in the matter. The said authorities be asked to submit report of action taken from time to time till it is necessary. The first report of action taken be placed before this Court within three months from today. The mattetxbe accordingly listed on board after three months.