Patna High Court
Vivekanand Mishra vs State Of Bihar on 7 December, 2007
Equivalent citations: 2008(1)BLJR839
Author: Dharnidhar Jha
Bench: Shiva Kirti Singh, Dharnidhar Jha
JUDGMENT Dharnidhar Jha, J.
Page 0840
1. The sole appellant Vivekanand Mishra, a constable in Bihar Police Force, was tried for charges under Sections 302 and 353 of the IPC and Section 27 of the Arms Act in Sessions trial No. 32 of 2002/97 of 1994 which arose out of Khizersarai P.S. case No. 32 of 1992 and was found guilty of committing the above noted offences by the Presiding Officer-cum-Additional Sessions Judge, Gaya by a judgment and order of conviction dated 24th of May, 2002 and was directed to suffer rigorous imprisonment for life under Section 302 of the IPC. The learned trial Judge did not pass any separate sentences for the conviction of the appellant under Section 353 of the IPC and Section 27 of the Arms Act. The above judgment and order of conviction as also sentence has been assailed in the present appeal.
2. The charges related to an occurrence dated 20th March, 1992. The prosecution story as contained in Ext-2, the fardbayan of P.W.5, constable Ramchandra Chauhan, states that at the above noted date and time while he was in the guard room and was on his bed offering his prayers after taking his bath, the appellant was sitting in the same guard room on his bed. The deceased, constable Nawal Kishore Singh, also came there after taking his bath and started offering his prayers by sitting on his Page 0841 bed. It is alleged that all (Sic) a sudden the appellant picked up his service rifle and fired a shot on constable Nawal Kishore Singh. The deceased cried out for help stating that the appellant had shot him and was writhing in pain.
3. P.W.5 caught hold of the appellant. At the same time constable Yugul Kishore Mehta (P.W.4) constable Fagu Ram (P.W.8), Hawaldar Sunil Kachhap (P.W.1) and constable Ravindra Nath Gupta (P.W.2) also came inside the guard room and they disarmed the appellant. Thereafter, the informant with the help of Hawaldar Sunil Kachhap (P.W.1) brought the injured constable Nawal Kishore Singh to Kutwa from where he was shifted to Khizarsari hospital and was admitted for treatment. The deceased died subsequently and the case which was initially registered under Section 307 etc. of the IPC and Section 27 of the Arms Act was converted into one under Section 302 IPC. The investigation was entrusted to P.W.9 Jaleshwar Pd. Singh, Inspector of Police, Khizarsarai police station who after examination of the witnesses and inspecting the place of occurrence, sent up the present appellant for trial which ultimately ended in the judgment and order of conviction and sentence as indicated at the very outset.
4. It may be noted that the guard room in which the occurrence took place was located in a government school and a picket of armed police force, of which the appellant as also the deceased were members, had been stationed there for maintaining peace and order in the locality. It was headed by P.W.9, S.I. Jaleshwar Pd. Singh and had also an A.S.I deputed there. The description of the place of occurrence in paragraph 5 of P.W.9, as also the evidence of other witnesses indicate as if the police guard were housed in one of the four rooms of the school whereas the three remaining rooms were utilized for schooling purposes.
5. The defence as set up by the appellant during the trial was that he was suffering from insanity from before and after the occurrence and on that particular day he had a bout of schizophrenia and was under treatment prior to and after the occurrence and as such he did not know the effect of his act. In other words the petitioner had taken a plea of exception under Section 84 of the IPC. The other aspect of the defence of the appellant, which appears from the suggestions given to different witnesses, was that the petitioner had not committed the offence and that under some sort of conspiracy hatched out by the informant and witnesses among them, the appellant was falsely implicated in place of the real culprit.
6. It appears from the record of the case that the appellant's plea of insanity was raised before the court below as well by filing specific petitions and during the course of the trial the learned Additional Sessions Judge embarked upon an enquiry as envisaged by Section 329 of the Cr.P.C. and during that course examined two witnesses, i.e., Dr. Anant Lal Choudhary, the doctor posted in Central Jail, Gaya and Dr. Chaudhary Laxmi Narayan, a Psychiatrist having an appropriate degree and who checked up the appellant at the request of the jail doctor. Both Dr. Anant Lal Choudhary and Dr. Choudhary Laxmi Narayan found the appellant a patient of schizophrenia in one form or the other and suggested that the appellant be treated in a appropriate institute, preferably, a Mental Asylum. The record indicates that the appellant was sent to Mansik Arogyashala, Kanke, Ranchi and was treated there and when he was back from treatment, he was proceeded to be tried for the charges indicates above. It is needless to note that the evidence of Dr. Anant Lal Chaudhary and Dr. Choudhary Laxmi Narayan recorded under Section 329 is evidence which Page 0842 has to be treated to be part of the evidence recorded during trial as appears emanating from the provisions of Section 329 of the Cr.P.C.
7. The prosecution examined nine witnesses for bringing the charges home to the accused. As against the above, the defence examined a solitary witness Dr. Chitranjan Sharma. The prosecution witnesses appear falling into two categories: he, who was in the guard room and witnessed the occurrence or any part of it subsequent to the occurrence. The other category of witnesses is of those persons who were outside the room and who rushed on hearing the gun shot or the cries of the deceased. P.W.5 Ramchandra Chuahan appears the solitary witness present in the guard room who gave an eye witness account of the occurrence. Others like, P.W.1 Sunil Kachhap, P.W.3 Rabindra Nath Gupta, P.W.4 Yugul Kishore Mehta and P.W.7 Fagu Ram appear witnesses who were admittedly not present inside the room where the main part of the occurrence took place. They rushed on hearing the gun shot or the cries of the deceased to the place of occurrence and appear disarming the appellant. P.W.2 Ashok Kumar Sinha was the Sergeant Major in Gaya Police Lines and he testified to the rifle which was used in the occurrence being effective as also about its supply along with cartridges on a requisition to that effect. P.W.6 Rajendra Pd. Yadav is a witness to the inquest held by P.W.9 on the dead body of the deceased Nawal Kishore Singh and the report Ext-3 prepared in that behalf. P.W.7 Dr. Mithilesh Kumar Sinha had held postmortem examination on the dead body and prepared Ext-4 the postmortem examination report. P.W.9 as indicated earlier had investigated the case.
8. The evidence which has been adduced by the prosecution appears of three types:
(i) The statement of the deceased after being hit by the bullet that it was the appellant who had shot him.
(ii) The eye witness account of the occurrence as narrated by P.W.5
(iii) The statement of witnesses that they rushed inside the room and found the informant Ramchandra Chauhan grappling with the informant to disarm him and helped him out in disarming the informant and also that they all tied the hands of the informant fearing that he may do the same dangerous thing to others as well. The statement of the deceased appears admissible under Section 32 of the Evidence Act as he was shouting out to persons present at the seen of occurrence or around it, naming the appellant as the person who had shot at him. This narration has been repeated by almost all the witnesses like P.Ws. 1, 3, 4, 5 and 8. On consideration of the evidence of these witnesses on the above fact what appears of stricking importance is that the reproduction of the statement of the deceased by each of them is untarnished. They have all stated the similar words that the deceased was speaking loudly that it was the appellant who had shot at him and that the statement was made repeatedly while the injured was rushing out of the room. The informant has stated this fact at the very first instance in the FIR which gets corroboration from the evidence of other witnesses on the above statement of the deceased.
9. The eye witness account of the incident, as indicated above, has been given by P.W.5 Ram Chandra Chauhan who is the informant of the case. He has stated that a barrack has been set up in the middle school in Adampur and it was of armed constabulary which was comprised of S.I. Jaleshwar Singh (P.W.9), Hawaldar Sunil Kachhap (P.W.1), constable Fagu Ram (P.W.7), constable Yugul Kishore Mehta, Page 0843 (P.W.4), constable Ravindra Nath Gupta (P.W.3) constable Nawal Kishore Singh (the deceased) and constable Vivekanand Mishra, the appellant. The witness has further stated that at about 8 A.M. while he was offering his Puja, the appellant was sitting on his bed when the deceased Nawal Kishore Singh came in and started offering his Puja by sitting at his hed. The appellant picked up his rifle and fired a shot on deceased Nawal Kishore Singh which hit him below his left elbow as also on the left side of his chest. The deceased rushed out of the room shouting that it was the appellant who had shot at him. The informant caught hold of the rifle of the appellant. By that time Sunil Kachhap (P.W.1), Yugal Kishore Mehta (P.W.4) and Fagu Ram (P.W.8) and constable on duty, Rabindra Nath Gupta (P.W.3), all rushed inside the room and P.W.5 and above named witnesses succeeded in disarming the appellant. Thereafter, the deceased Nawal Kishore Singh was put on a cot and was brought to Kutwa from where he was brought to Khizersarai through a police Jeep by the above noted witnesses and P.W.9 Jaleshwar Pd. Singh. The witness was cross-examined at length and there does not appear anying elicited in it which could discredit him as an eye witness. The witness stated that after disarming the appellant they tied down his hands and the witnesses went to see the deceased.
10. It appears from the trend of cross-examination of P.W.5 that the defence attempted to challenge the veracity of evidence of P.W.5 by cross-examining him on not giving his statement at Kutwa nor at place of occurrence and never before having reached Khizersarai hospital. This appears from paragraphs 11 and 12 of P.W.5. This was also highlited by the learned Counsel for the appellant during hearing the present appeal that the above circumstance made it suspicious as to why P.W.5, claiming himself as an eye witness, who was very much present inside the room, was not coming forthright to give his statement though he had occasions of making his statement. What I find and feel is that the informant and other police personnel who were deputed at the police picket, which happens to be the place of occurrence in the present case, must be preoccupied with the urgency of saving the life of the deceased by getting him to a hospital. In a situation which was created on account of the occurrence having taken place, all persons must have been doing every bit and by all possible means to transporting the deceased to a hospital and it would not have been in any corners of their minds as to giving statement. This appears consistent with ordinarily natural human conduct and there does not appear any inconsistency if no one was lodging report prior to reaching the hospital at Khizersarai where Ext-2, the fardbayan was recorded by S.I. N.K. Singh.
11. The other witnesses in the case do not appear having witnessed the real occurrence of the appellant picking up his rifle and firing a shot so as to seriously injuring the deceased. They appear not being inside the room. They were at different places in the same premises. P.W.3 Rabindranath Gupta, the constable deputed at the same picket with the informant and others, was on sentry duty so as to guarding the picket and the arms and ammunitions stored therein. This witness has fairly conceded this as may be found from the consideration of his evidence. What he has stated further is that it was the turn of the deceased Nawal Kishore Singh to come on sentry duty and he had gone to put on his uniform so as to relieving P.W.3 and that P.W.3 heard the sound of firing. The deceased Nawal Kishore Singh rushed out of the room shouting that the appellant had shot and injured him. P.W.3 further stated that he found injuries on the left side of the ribcage and also on the lower part of the hand of Page 0844 the deceased. Likewise, P.W.1 Sunil Kachhap has stated that he was engaged in shaving while P.W.8 Fagu Ram and P.W.4 Yugal Kishore Mehta were brushing their teeth when the incident occurred and Nawal Kishore Singh, the deceased, rushed out of the guard room stating loudly that it was this appellant who had shot at him. P.W.4 Yugal Kishore Mehta has also stated that he was brushing his teeth as was narrated by P.W.1 and he also stated the same facts as narrated by other P.Ws. P.W.8 Fagu Ram has also supported P.W.1 Sunil Kachhap and P.W.4 Yugal Kishore Mehta that he was washing his mouth by sitting at the Verandah. From the reading of the evidence of P.Ws 1, 3, 4 and 8 what could safely be concluded is that out of their own showing they could not be the eye witnesses to the real occurrence of the appellant picking the rifle and shooting at the deceased but nonetheless, their evidence is of no less value and importance. They have all stated on the transaction which was in continuity and formed the chain of acts forming the sequence of the same transaction.
12. Section 6 of the Evidence Act makes the evidence of the above witnesses admissible because they have stated that they heard the sound of gun fire coming out of the guard room. Their attention was attracted to that. They saw the deceased rushing out of the guard room in an injured condition. They heard the deceased shouting that it was the appellant who had shot and injured him. They further stated having seen the sites of the injuries and that the deceased was rushed to the hospital. These all were acts or words done or spoken immediately after the occurrence or at that particular time.
13. Section 6 of the Evidence Act, as noted above, speaks of relevancy of facts forming part of same transaction. The language of the Section may not make the proposition very clear. The Section states that acts which, though not in issue, are so connected with the facts in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. However, illustrations appended to the Section, which are necessarily part of the main provision, i.e., the body part of the Section make the principle of res gestae very clear. Out of four illustrations that at (a) is highly instructive as regards the present discussion. It reads : -- "A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
The above illustration indicates that both the acts as are done and the words which are spoken are relevant. This is plainly clear from words "whatever was said or done". But that illustration (a) does not elucidate the full import of Section 6 and the principle of res gestae. If one considers illustration (b) then one could find that places, properties, or other things may also be parts of the same transaction. This could be the reason that some of the jurists and celebrated authors have, while defending the provision, pointed out that the place of occurrence and its description is also admissible under Section 6 of the Evidence Act as parts of the transaction which ultimately are the parts of the facts of the case which are relevant for deciding the issue of an accused of a particular offence committing or not committing the same. As has been noticed earlier the witnesses have stated to different parts which form the whole transaction of one occurrence. P.W.5 the informant narrates as an eye witness as to how the appellant picked up his gun and shot and injured the deceased while the remaining witnesses like P.Ws 1, 3, 4 and 8 stated to other facts Page 0845 forming the chain of transactions which have been picked up by me as independent facts in one of the preceding paragraphs of the present judgment. Besides the above, the witnesses have stated equivocally that the deceased rushed out of the guard room in an injured condition shouting that it was this appellant who shot at him and injured him.
14. Section 32 of the Evidence Act makes the statement either written or verbal of a dead person relevant if it relates to the cause of his death or as to any of the circumstances of the transaction which resulted in his death if the cause of the death of that person comes into question. The deceased was shouting while rushing out of the room that the appellant Vivekanand Mishra had shot and injured him. This statement was heard by the persons who were at or around the place where the police picket had been stationed. There was no challenge by the defence to any witness that the injured was not making any statement as has been narrated by each of the witnesses. The words which were stated by the deceased while rushing out of the room have been reproduced by the witnesses without any variance as regards the narration by each of them before the trial court. There is no inconsistency, there is no conflict or any sort of aberration in reproducing the words spoken by the deceased by any of the witnesses. They are consistent in reproducing the statement made by the deceased to the extent that they have neither missed any word nor added any to the statement that it was the appellant Vivekanand Mishra who shot at the deceased. Consistency is a hallmark for accepting such an evidence when it is reproduced orally by witnesses.
15. While hearing the present appeal the learned Counsel appearing for the appellant wanted us to accept the propositions that the appellant had not fired and killed the deceased and that it could have been any other person. Besides, requested us to accept that that the witnesses were telling untruth intentionally so as to shielding the real culprit and implicating an innocent person like the appellant. In the above regard, the learned Counsel drew our attention to the evidence of P.W.5 Ramchandra Chouhan the informant of the case who was suggested in paragraph 8 of his evidence that in fact Vivekanand Mishra was shouting and telling P.W.5 as to what he had done and that the rifle by which the shot was fired was being snatched by Vivekanand Mishra. The other evidence to which our attention was drawn by the learned Counsel for the petitioner was regarding the keeping of the rifles by individual constables deputed at the picket. After having gone through the evidence of the witnesses, I find that there is no reason for recording a finding that it was not the appellant who caused death of the deceased. The reason is very simple. There is no material brought on record by the defence to persuade us to take a view that the relationship between the appellant and the remaining constables posted at the picket was so bad as to motivating them to join each other in hatching up a conspiray of murdering an innocent fellow-constable, like, the deceased and implacting yet another innocent person like the appellant. There is no material further brought on the record by the defence to indicate that the deceased could be a thorn in the flesh of the constables who are the witnesses in the case so as to be eliminated by being shot and killed. Above all, there is no reason as to why the constables would suppress the reality of a murder committed in day time so as to shielding the real culprit and implicating an innocent.
16. As regards the contradictions or aberration in the evidence of the witnesses which could compel the court to reject their testimony in its entirety, there was a simple Page 0846 lapse on part of P.Ws 1 and 2 on a very minor fact of keeping of the rife by the constables when they had been relieved of their respective duties. P.W.1 stated in paragraph 4 that he used to keep his rifle after completing his duty after unloading it on his seat itself. This fact goes contrary to the statement of P.W.2 in para 8 where he has stated that the constables used to keep the rifles together at one place which was guarded by the constable on duty. The other fact to which our attention was drawn was the evidence of P.W.1 in paragraph 8, wherein he has stated that Nawal Singh never offered any Puja though he was a believer. This may be pointed out that the principles of falsus in uno, falsus in omnibus is not applicable to the Indian situations. The social conditions, the training of life which we get in our society as also on level of literacy make it utterly impracticable to apply the above principle to witnesses in India. The capabilities to retain and reproduce the facts of a witnesses vary from man to man and some pitfalls here and the other there might not be an unusual incidence in the deposition of a witness deposing in our courts. This is the reason that the courts are required to separate the grains from the chaff so as to isolating the truth and acting upon them in passing a judgment. Moreover, the question was not as to where and how the rifles were kept. Similarly, the evidence of single witness on the deceased being a believer but not offering a Puja may not be enough to reject the proved facts of the case. It shall be acting on too trivial a matter to bear any importance on proof of the charges and the entire facts and circumstances of the case.
17. The evidence produced before the learned trial court establishes with satisfactory probabilities that the act of picking up the rifle and firing a shot and injuring the deceased was definitely committed by the appellant. In the light of the above finding the argument of the learned Counsel for the appellant that the rifle was not belonging to the appellant appears of no consequence. However, the evidence of P.W.2 Ashok Kumar Sinha, Sergeant Major, working in the Police Lines, Gaya raises a probability that indeed the rifle which was used was issued by the armoury of the Police Lines for being allotted to the appellant. The witness has stated in paragraph 6 of the evidence that though he had not verified the fact but the requisition for the rifle clearly stated that it was to be supplied with cartridges to the appellant Vivekanand Mishra. Even if the gun would not have been one which was supplied to the appellant, the facts indicated that he picked up the rifle and shot the deceased who subsequently succumbed to the injuries.
18. The appellant has by cross-examining the witnesses and also by examining his own defence witness in the form of Dr. Chitranjan Sharma and by placing reliance also on two witnesses examined under Section 329 Cr.P.C has indicated that he was insane prior to and after the occurrence and at the time of occurrence as well. Thus, the exceptional plea of insanity as envisaged by the provisions of Section 84 of the Indian Penal code was taken. The provision reads as under-"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".
19. The plea of insanity or any plea of general exception or any provision which brings the act out of the purview of a defined offence either in the Penal Code or in any other enactment has to be substantiated by the appellant.
20. Section 105 of the Evidence Act requires, the accused to prove the existence of circumstances bringing the case within any of the general exceptions in the Penal Page 0847 Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, else, the court shall presume the absence of such circumstances. Thus, the court has to believe that there was no such circumstance which could bring the case under any of the general exceptions, etc. However, this burden of proving the defence of existence of circumstances bringing the case within any of the general exceptions etc could be shifted to the accused only when the prosecution had proved its case to the hilt. The difference between onus of proof lying on the prosecution to prove the charges beyond all reasonable doubt and the burden of proof on the accused regarding the presence of the circumstances so as to eliminating the absence of such circumstances has to be appreciated by the courts in the light of Section 105 Evidence Act. The onus of proof upon the prosecution for proving the commission of an offence could be discharged only when it has proved by satisfactory, acceptable and admissible evidence the ingredients of the offence. In other words, if the prosecution has not been able in establishing any of the ingredients of an offence, which together constitute the offence, then it could not be said to have discharged its onus and the accused could get acquitted at that stages itself. There could not be any necessity for the accused to persuade the court further to scrutinize the defence of the accused or to seek his explanation regarding any circumstance or inference raised by the evidence. This could be illustrated by being noted down that, say, an offence has five ingredients. The prosecution is required to lead evidence so as to establishing each and every ingredient of the offence. If it fails in establishing even a single of the ingredients, then in that case the charges could not be held to be proved; it stands disproved and the accused has to be acquitted on that score alone. As against that, supposing that a general exception is constituted by five facts and the accused for proving them, has led evidence not to the satisfaction of the court on the four of such facts, but has succeeded in establishing the fifth ingredient of the plea of general exception, then in that case the proof of that particular ingredient creates a doubt in the prosecution case entitling the accused to acquittal. This principle of law as enunciated above was expounded by the Supreme Court in a huge number of cases starting from K.M. Nanavati v. State of Maharashtra . The discussion appears at page 617 of the report in K.M. Nanavati and I want to profit myself by reproducing the relevant part of the discussion:
An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under Section 105 of the Evidence Act that the shooting was not by an accident in the circumstances mentioned in Section 80 of the Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of Section 80 of the 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 Section 300 Indian Penal Code, or at any rate may throw a Page 0848 reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed as to bring his case within the terms of Section 80 of the Indian Penal Code, the court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accuse. 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 prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establishing exception, may be sufficient to negative one or more of the ingredients of the offence.
21. The Apex Court have considered the above question of proof beyond reasonable doubt and the burden of the accused to discharge his onus of proving general exceptions or the absence of any circumstances bringing his case out of the circumstances as spoken of by Section 105 of the Evidence Act in another decision Vijayee Singh v. State of U.P. That was a case in which the accused had pleaded right of private defence on account of one of the accused also bearing gun shot injuries inflicted by the prosecution party. Thus, in that case the plea of general exception as appearing in Sections 101 to 104 IPC was being considered and in that context the Supreme Court was discussing the degree of proof which lies upon the prosecution as regards proving the charges and the burden of discharging the plea of exception by way of right to private defence by the accused. The relevant discussion appears in paragraph 25 of the report at page 1475:
The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places 'burden of proof' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examination, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an Page 0849 exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.
22. Thus, what appears from the above discussion is that it is not that for discerning the discharge of onus of proving the charges by the prosecution or the burden lying upon the accused to prove his defence of general exception or the absence of the circumstances making the pleas of general exceptions inapplicable, could be considered in isolation of each other. The prosecution evidence has to be read in the light of the facts introduced by the defence either through the cross-examination of the prosecution witnesses or through its own evidence and as soon as any probability appears indicating that the accused might have acted in a manner which makes the circumstances available to the court for raising a presumption of acting under any of the exceptions or any other provision of law, then in that case a doubt is created in the entire prosecution story and the accused gets acquitted. In fact, as soon as the accused succeeds in introducing a fact on record showing the preponderance of probability of the accused being protected by virtue of any of the general exceptions, the very statutory presumption eliminating the application of the provisions of the general exceptions is lifted and the accused gets acquitted. As pointed out by the Apex Court the accused is never required to lead evidence, though he may do it; if he succeeds in bringing such circumstances probabilising his pleas of defence then he had discharged his burden. The burden lying on the accused is to be considered on the balance of preponderance of probabilities as in a civil case and it is never of the standard as is required of the prosecution regarding the proof beyond all reasonable doubt.
23. Thus, what may appear from the above discussion is that in a case where insanity is pleaded, the two principles of onus as on the prosecution and the burden as it is on the accused, run counter to each other and side by side. This Court very lucidly indicated as to where the two principles in a case of the present nature could be meeting together and acting together so as to raising a perfect inference about the applicability or inapplicability of the protection of general exceptions, especially under Section 84 IPC. The decision was rendered in Kamala Singh v. State and it was observed by the learned Judge who was delivering the judgment in that case, that "they operate simultaneously in the common zone from the inception of the trial to its closer and that even when special plea of insanity is pleaded and Section 105 Evidence Act comes into operation the principle of general onus has still to discharge its obligation and in no less degree than when no such plea is pleaded.
24. That being so, the prosecution will succeed only when it is found at the end of the trial that the circumstances necessary to prove the case beyond reasonable doubt are not in any way weakened by those in favour of the special plea of insanity. This test, if correct, suggests that the quantum of onus that is contemplated by Section 105 of the Evidence Act against the prisoner is that which should be enough to make the premise doubtful on the basis of which the prosecution has to discharge the onus, namely, that the prisoner was not of unsound mind and that he was capable of knowing the nature of the act alleged against him.
Page 0850 In other words, the onus laid down in Section 105 does not demand that the evidence of insanity if pleaded should be proved beyond reasonable doubt as it is required to be done by the prosecution in proving its case...."
25. The above view was again reiterated by the Apex Court in Dahyabhai v. State of Gujrat .
26. Then the question is as to what could be the parameters of the plea of insanity. This is by now a well settled principle of law that when such a plea is raised by an accused 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. The court which is called upon to take upon the exercise of finding out the state of mind of the accused has to consider the circumstances around the accused which preceded, attended, and followed the crime. There is a line of decisions pointing out the above as regards the plea of insanity and consideration of the same in the light of the material. One such decision could be the aforecited Dahyabhai (Supra).
27. The evidence of the prosecution witnesses contains some of the circumstances raising an inference that the appellant might not be normal mentally. P.W.1 in paragraph 16 was cross-examined by the appellant on the reason for tying up the appellant and putting him aside after disarming him. The witness has stated that the appellant was tied down only because the witnesses feared that in the same fit of madness the appellant could fire upon the witnesses as well. P.W.4 and P.W.5 have also stated in their respective paragraphs 9 and 8 that they had tied down the appellant and put him aside on the Verandah. P.W.8 also stated the above fact of tying down the appellant Vivekanand Mishra in his examination-in-chief and that while he was being tied the witness (P.W. 8) kept him in his crutches (P. W. 8 para 8). The above line of evidence either appearing in the examination-in-chief part of the witness or appearing in the cross-examination of the above noted witnesses raised a legitimate question as to why Vivekanand Mishra, if he had been a normal person, would be required to be over powered by as many as five witnesses and had to be tied down and put aside. The reason as indicated above has been stated by P.W.1 in paragraph 16 that they feared Vivekanand Mishra doing the same to them as well in the same fit of insanity. This was on the day of the occurrence.
28. As regards the state of health of the appellant, the defence exhibits tell some story about his previous mental health. We were a bit sceptical in accepting evidence of D.W.1 Dr. Chitranjan Sharma especially the exhibits A series which are the prescriptions issued by D.W.1 Dr. Chitranjan Sharma in proof of examination of the appellant but when our attention was drawn to Ext-A to A/3, A/4, A/5 and Ext-B we could not reject the evidence of the appellant examined by one of the specialist psychiatrists, Dr. B.B. Singh, who was working in Ranchi Mansik Arogyashala, Kanke, Ranchi who examined the appellant on 6.2.1977 and he was advised some medicines like Trinicalm Forte twice daily, which is definitely a drug for treating a patient of Schizophrenia and Hallucination. The patient was diagnosed suffering from Scizophoenia and Hallucination. He was advised to consult Dr. B.B. Singh every two months for review of his mental state and the prescriptions indicate that he was treated by Dr. B.B. Singh up to 1991. It is true that Dr. B.B. Singh was not examined, Page 0851 but on receiving a summons he sent Ext-B to the court indicating the state of his bad health in permitting him to travel up to Gaya from Ranchi after he had retired from service and to depose in court. D.W.1 Dr. Chitranjan Sharma himself, a doctor has testified to the writings on Ext-A to a/5 and B to be that of Dr. B.B. Singh and we do not have any compelling reason to discard his evidence for simple reason that being a professional they must have known each other and must be acquainted with the writings of each other.
29. After the appellant had shot and injured the deceased he was captured by his fellow constables and was tied down. He was remanded to custody as appears from order dated 21.3.1992 passed by C.J.M., Gaya in the main case, i.e., Khizersarai P.S. Case No. 32 of 1992. A petition was filed by the appellant on 2.5.1992 indicating to the court that he was not mentally fit and his condition was deteriorating and required immediate specialist treatment. The C.J.M., Gaya appears taking steps on various dates by directing the Jail Superintendent by his above order dated 2.5.1992 and others to take appropriate steps for the treatment of the appellant and let the court know about the full facts. There does not appear much done by the Jail Superintendent or by the Magistrate, handling the case unless this Court while hearing Cr. Misc. No. 8161 of 1993 directed the learned Sessions Judge, Gaya to take into account the ailment of the appellant that he suffered.
30. It appears from the record specially the evidence of Dr. Anant Lal Chaudhary examined under Section 329 Cr.P.C that probably on receipt of the orders of this Court he examined the present appellant who was lodged in Central Jail, Gaya and submitted a report to the Chief Medical Officer-cum-Civil Surgeon that the appellant required to be checked up by a specialist Psychiatrist and for that some Psychiatrist from Magadh Medical College needed to be deputed on the basis of which Dr. Chaudhary Laxmi Narayan (witness No. 2 under Section 329 Cr.P.C) was deputed and on examination of the appellant by Dr. Chaudhary Laxmi Narayan the appellant was sent to Ranchi Mansik Arogyashala for treatment. The reasons for making the report as pointed out above was that the appellant was sometimes weeping or sometimes laughing. Dr. Laxmi Narayan Chaudhary was posted in Anugrah Medical College as Psychiatrist from April, 1992 to July, 1993 and he examined Vivekanand Mishra, the appellant, three times and found him suffering from depression with Psychiatric features. The symptoms were also that the patient was depressed in mood and developed hopelessness to such an extent that he was having suicidal ideas besides having disturbed sleep, appetite and other biological features could also be disturbed. Such a patient in the opinion of Dr. Chaudhary Laxmi Narayan could develop delusion and Hallucination. The doctor stated that it was very difficult for him to say as to from when the appellant was suffering from above disease. The doctor further opined that the appellant required specialized treatment either at a mental asylum or under the care and supervision of a Psychiatrist, else there was no chance of the appellant improving. In the opinion of Dr. Chaudhary Laxmi Narayan the period for treatment was for three months with further treatment for maintaining the state of mental health of the appellant. It appears from perusal of the record of the Magistrate that after being produced for remand the appellant was never produced for many months before the court for being remanded to custody. In fact the appellant could be remanded the second time on 10.8.1992 after his first remand on 21.3.1992, thats, after five months. This also appears a circumstance. It Page 0852 could have been very difficult for the security personnel to handle such a prisoner for bringing him before a Magistrate for getting a remand order against him. Not only the above, this Court also appears releasing the appellant considering his mental disorder as appears from order passed in Cr. Misc. No. 13121 of 1996. Thus what appears from the record and different orders passed by the Magistrate himself or in the light of the order passed by this Court, this is also satisfactorily indicated that just after the occurrence the appellant was mentally unfit. It hardly requires to be pointed out that such a patient could be danger to his own life or to the life of any other member of his family or his companion. Depression is also known to cause suicidal tendency, Hallucination is also known to causing such state of mind as to react in such a manner as dangerously as to take other's life. The witnesses have stated that the appellant was disarmed by the constables. That was not sufficient. One of the witnesses has stated as noted above, that he kept on catching the appellant very tightly so that his hands could be tied and he may be kept aside by being immobilized. The witnesses have stated that the deceased and the appellants or for that matter other constables, had no grudge against each other, they were posted at the same picket to do the same nature of duty. There was no motive or ill-will between them. This appears a case as if the appellant was not knowing as to what he was doing. The appellant was not having any capacity for the intention or mens rea for committing the offence. This is the simple inference to be deduced from the facts and circumstances discussed above and as soon as I hold that the appellant was not having mens rea for committing the offence, then I must acquit him. The appellant Vivekanand Mishra is acquitted of the charges for which he was found guilty and sentenced as indicated at the very out set of this judgment. The appellant is in custody. He is directed to be released from custody forthwith, if not wanted in any other case.
Shiva Kirti Singh, J.
31. I agree.