Bombay High Court
Nathu Bapu Mhaskar vs State Of Maharashtra on 1 November, 1995
Equivalent citations: 1996CRILJ2120
JUDGMENT Rane, J.
1. The appellant herein is the accused in the Sessions Case No. 87/1990 on the file of IInd Additional Sessions Judge, District Satara. He was charged under Section 302 of the Indian Penal Code. The Learned IInd Additional Sessions Judge, Satara by his Judgment dated 4th September 1992 found the appellant guilty of the offence of murder under Section 302 of IPC and sentenced him for rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in default to undergo R.I. for two years. The appellant/accused has challenged in this appeal the said findings of the IInd Additional Sessions Judge, Satara and his conviction and fine as imposed.
2. Before we proceed to consider and deal with the merits of the appeal, it is necessary to mention certain intervening circumstances as have happened in this appeal. This appeal was heard and was disposed of by a Bench of Judges comprising of V. H. Bhairavia & P. S. Patankar. JJ., by their Judgment dated 2nd September 1994. The appeal of the appellant was dismissed thereby confirming the findings of the trial Court as also the sentences imposed upon the appellant. Being dissatisfied and aggrieved by the said findings, the appellant carried the matter before the Supreme Court in Criminal Appeal No. 600 of 1995 and the apex Court by its Judgment and order dated 27th April 1995 proceeded to set aside the findings of this Court of dismissal of the appeal and remanded the case back to this Court for afresh disposal of the appeal on merits. That is how this appeal has come up before this Court.
3. We would also think it appropriate to clarify at the outset and at this stage that since the Supreme Court has directed the disposal of the appeal on merits, we are proceeding to dispose of the same on merits, in all respects totally uninfluenced by the findings rendered earlier by our brother Judges as mentioned earlier.
4. Certain facts in the background of the prosecution against the appellant may be stated as under :
The unfortunate incident being sequel to the launching of the prosecution in this case has taken place on 5th January 1990 at about 3.30 p.m. in the village Dhapalwadi, Tq. Karad, Dist. Satara. The name of the victim is Rajaram Pandurang Mhaskar, a resident of said village Dhapalwadi who happened to be the maternal uncle of the appellant. It is the case of the prosecution that on the date and time of the incident as mentioned above the appellant committed the murder of Rajaram Pandurang Mhasker knowingly causing his death by inflicting blows with the axe on his vital part of his body namely head and neck, the motive being the dispute in respect of the agricultural land. Incidently, it may be mentioned that the appellant also happens to be the resident of the said village Dhapalwadi.
5. It is the case of the prosecution that there was a dispute between the appellant and the deceased Rajaram over the boundaries of their agricultural land which were adjacent to each other. On the day of incident i.e. on 5th January 1990 at about 3.30 p.m. the appellant was passing along the road in that village Dhapalwadi. The deceased Rajaram was also passing along that road and proceeding from the opposite direction of the appellant. At that lime witness Dnyandeo Tukaram Kadam was also passing along that load in the said village. The appellant was following Dnyandeo Tukaram Kadam (P.W. No. 4) which means that Dnyandeo Tukaram Kadam (P.W. No. 4) was also proceeding along that road in the opposite direction of deceased Rajaram
6. The case further proceeds that the said Dnyandeo Tukaram Kadam (P.W. 4) waited and had a talk with deceased Rajaram for about 2 minutes and thereafter Dnyandeo (P.W. 4) proceeded ahead. Deceased Rajaram also proceeded in the opposite direction of Dnyandeo. When deceased Rajaram came near the house of Suman Jaising Mhaskar (P.W. No. 3) it is the case of the prosecution that the appellant went inside back-yard of the house of witness Suman (P.W. No. 3) picked up an axe from there and he came towards deceased Rajaram and inflicted 3 blows on deceased Rajaram - one on the neck and two on the head - one above the left car and one below the left car. This ghastly incident was witnessed by Suman (P.W. No. 3) who screamed at its sight. Dnyandeo (P.W. No. 4) who had proceeded ahead heard the screams of Suman (P.W. No. 3) and he looked behind and noticed the appellant assaulting the deceased Rajaram with the axe and Rajaram falling down. The deceased Rajaram died instantaneously. Dnyandeo (P.W. No. 4) immediately rushed towards the place of incident by dropping the tape-recorder in his hand at that place and he caught hold of the appellant. By that time the appellant had thrown away the axe which was in his hand. Said Dnyandeo (P.W. 4) also noticed bleeding injuries on the head of the deceased Rajaram. At that time another witness Shewantabai Bapu Kalmbekar (P.W. No. 2) was also passing along the same road and her attention was also drawn because of the noise, when she also saw deceased Rajaram having fallen on the ground and accused-appellant standing by his side with an axe in his hand.
7. Dnyandeo (P.W. No. 4) after catching hold of the appellant, took him to the appellant's house and tied him with a rope and kept him locked in one of the rooms in the appellant's house itself.
8. Jagannath Dnyandeo Salunke (P.W. No. 1) who is related to both - the appellant and deceased Rajaram learnt about the said incident. He then went to Umbraj Police Station in Taluka Karad and lodged First Information Report about incident, which is produced as Exh - 18 on record.
9. After recording the FIR., the Investigation Officer Chandrakant Baburao Shinde (P.W. No. 8), Senior PSI., took over the investigation in his hand. He alongwith the police compliments rushed to the scene of offence in village Dhapalwadi and noticed the dead body of deceased Rajaram lying there. He kept two Constables near the dead body and then after he learnt that the appellant was kept in his house went there. He took the appellant in his charge and put him under arrest under the Panchanama which is produced as Exh-14 on record. The said officer also took charge of the clothes of the accused.
10. The Investigation Officer Shri Shinde (P.W. No. 8) then look charge of the dead body of deceased Rajaram under Inquest Memo, sent the same for post-mortem to the civil Hospital. He also recorded statements of witnesses in this case. The articles which were taken charge of such as clothes of the deceased Rajaram, accused and others so also the weapon of the assault - axe were taken charge of. The Post-mortem report in respect of autopsy conducted on the dead body of Rajaram, has been produced as Exh-25, which mentions that deceased Rajaram died homicidal death due to injuries sustained by him.
11. After completion of the investigation, PSI Shri Shinde (P.W. No. 8) submitted the charge-sheet before the Sessions Court, district Satara, against the appellant for the offence under Section 302 of the IPC. The learned Sessions Judge framed the charge against the appellant for murder under Section 302 of IPC for the murder of deceased Rajaram. The appellant abjured the guilt when he was read over and explained the charge against him and claimed to he innocent and hence the trial proceeded.
12. During the course of the trial, the prosecution examined 8 witnesses and they are :
1. Jagannath Dnyandeo Salunkhe (P.W. No. 1) who lodged the FIR (Exh-18).
2. Shewantabai Bapu Kalmbekar (P.W. No. 2) who was also present in the near vicinity at the place and noticed the injured deceased Rajaram and appellant standing near him with the axe in his hand.
3. Suman Jaising Mhaskar (P.W. No. 3) - The eye witness to the incident saw from the backyard of her house that the appellant picked up an axe and dealt with blows with it upon the head of the deceased Rajaram and who screamed by noticing the said assault.
4. Dnyandeo Tukaram Kadam (P.W. No. 4) who was also passing along the same road and who had met the deceased Rajaram just little before the incident and had talk with deceased Rajaram and who had also seen the appellant passing along the said road. He is the witness who also saw the appellant assaulting with an axe to the deceased Rajaram and he i.e. this witness rushing towards the place of incident and catching hold of the appellant and then taking him to the place of the appellant continuing him in the room in the appellant's house after tying him with the rope.
5. Parubai Rajaram Mhaskar (P.W. No. 5) - Widow of deceased Rajaram who has deposed about the dispute between her family and the family of the appellant over the boundaries of the agricultural land. She has also deposed about the quarrel between her and the wife of the appellant about couple of months prior to the incident.
6. Dr. Shoukatali Babalal Sheikh (P.W. No. 6) - The Medical Officer attached to the Hospital at Karad and who conducted the autopsy on the dead body of Rajaram on 6th January 1990. He has produced the autopsy report which is marked as Exh-25 on record and he has testified about the various injuries he noticed on the dead body of deceased Rajaram and has further opined that such injuries could be caused by sharp and cutting instrument like an axe. He was shown the axe which was taken charge of being article No. 5 and he opined that the injuries as noticed by him on the dead body of deceased Rajaram could be possible by the said weapon.
7. Subhash Balu Kalmbekar (P.W. No. 7) - Who arrived at the scene of offence shortly after the incident and who noticed the dead body of Rajaram in the pool of blood lying on the ground so also Dnyandeo (P.W. No. 4) having caught hold of the appellant. And,
8. Chandrakant Baburao Shinde (P.W. No. 8) the PSI attached to Umbraj Police Station and who carried out the investigation in the case and submitted the chargesheet and took various steps in that behalf such as arrest of the appellant, taking charge of various incriminating articles like clothes, weapon and who submitted the chargesheet against the appellant.
13. The appellant besides pleading his innocence to the charge levelled against him also took the defence of unsoundness of mind as enjoined under Section 84 of the IPC. The appellant examined six witnesses on his behalf to prove his unsoundness of mind and they are :
1. Dr. Manjitsing Ramkrishnasingh Palahe, Psychiatrist (D.W. No. 1) who has deposed he having examined the appellant in the month of November 1989 and that the appellant was suffering from schizophrenic psychosis. He deposed that he has examined the appellant first time in the month of November 1989 precisely on 3rd November 1989 and thereafter on 18th November, 24th November 1989, 9th December, 18th December and 24th December 1989. He also stated he having issued a Fitness Certificate to the appellant on 24th December 1989 certifying that the appellant was improved and fit for resumption of his duties. The xerox copy of the said Certificate has been produced as Exh-36 on record.
2. Vasant Pandurang Patil (D.W. No. 2) - Jailor of sub-Jail Karad where the appellant was brought on 11th January 1990 i.e. after 5/6 days after the day of incident.
3. Shaikh Ahmad Shaikh Usman (D.W. No. 3) attached to Satara Jail at Satara where the appellant was brought on 13th January 1990.
4. Shivdas Dagadudas Bairagi (D.W. No. 4) Constable attached to Satara Jail
5. Lilabai w/o Bapu Mhaskar (D.W. No. 5) wife of the appellant. And,
6. Shankar Daji Salunkhe (D.W. No. 6) - Father-in-law of the appellant.
14. It may be stated that as far as the witnesses - D.W. No. 2, 3, and 4 are concerned, the appellant has sought to examine them to show that his conduct while being detained in the Jail was abnormal. Similarly, as far as D.W. Nos. 5 and 6 are concerned, the appellant has examined them to show that he was suffering from mental impairment and that there was no dispute or enmity between him and deceased Rajaram.
15. The learned IInd Additional Sessions Judge, Satara, before whom the trial proceeded, on consideration of the evidence made available by the prosecution as well as by the defence proceeded to accept the case as put forth by and on behalf of the prosecution and came to the conclusion that the prosecution has proved the charge and an offence of murder of deceased Rajaram by the appellant and held him guilty for the said offence. The learned Sessions Judge also rejected the plea of unsoundness of mind put forth by the appellant as and by way of defence under Section 84 of the IPC holding that the appellant had failed to prove that he was a person of unsound mind at the time of commission of the offence. After rendering such findings, the learned Sessions Judge sentenced the appellant to undergo R.I. for life.
16. It is against the said finding, as stated earlier, the appellant has approached this Court.
17. The learned counsel Mrs. Bhonsale appearing for the appellant had made submissions as under
(1) That the charge of murder against the appellant his not been proved by the prosecution.
(2) The rejection of the defence by way of plea of the appellant of unsoundness of mind by the learned Sessions Judge was improper and illegal. In asmuchas, the learned Sessions Judge hats failed to consider the evidence adduced by and on behalf of the appellant in support of the said plea of unsoundness of mind and has also ignored and/or discarded the evidence which the appellant adduced before him.
These are the two principal points on which the learned counsel for the appellant addressed the Court.
18. As against this, the learned A.P.P. Mr. B. R. Patil submitted that on the 1st ground, there is an overwhelming and clinching evidence which has clearly established the complicity of the appellant in the offence and charge of murder against the appellant was stood proved beyond any reasonable doubt.
19. As far as the 2nd contention urged by and on behalf of the appellant regarding the plea of unsoundness of mind, the learned A.P.P. submitted that the said plea has not been established satisfactorily. In asmuchas, the learned A.P.P. emphasized that the material point of time for consideration of such plea is the time when the offence in question has been committed and state of unsoundness of mind must be shown and proved to have existed at the time when the offence took place. It is pointed out that the appellant has totally failed to prove that he was suffering from unsoundness of mind at the crucial point of time when be committed the offence.
1st November 1995.
20. Having thus broadly considered the case of the prosecution, nature of evidence adduced and points urged, we propose to deal with the same in the light of material on record.
21. First and foremost is whether the prosecution has been able to establish the complicity of the appellant in the offence of murder of which he is chargesheeted. The trial Court has held the prosecution having established the charge of murder against the appellant in satisfactory and/or beyond any reasonable doubt. We propose to examine the same aspect.
22. As far as the incident is concerned, the witnesses who have deposed about the same are P.W. No. 1 - Jagannath Dnyandeo Salunkhe, P.W. No. 2 - Shewantabai Bapu Kalmbekar, P.W. No. 3 - Suman Jaising Mhaskar, P.W. No. 4 - Dnyandeo Tukaram Kadam and P.W. No. 7 - Subhas Balu Kalmbekar. Amongst them P.W. No. 3 and 4 - Suman Jaising Mhaskar and Dnyandev Tukaram Kadam are the eye-witnesses and P.W. No. 2 and 7 - Shewantabai Bapu Kalmbekar and Subhas Balu Kalmbekar arrived at the same place almost immediately after occurrence of the incident.
23. Suman Jaising Mhaskar (P.W. No. 3) and Dnyandeo Tukaram Kadam (P.W. No. 4) are consistent with regard to the occurrence of the incident. In asmuchas Suman has deposed as to how the incident occurred. In that she has stated she having seen the appellant as well as the deceased Rajaram passing along the road and proceeding in opposite direction of each other. She has also stated that accused/ appellant suddenly went off the road, entered into back yard of her house and picked up an axe which was lying there and with it he went towards the deceased Rajaram and dealt with 3 blows with the axe on his head - two near the left car and one on the neck and as a result of such blows deceased Rajaram fell down. She has also deposed she having screamed by noticing the ghastly incident. She remained firm and consistent in her version and her testimony in that respect has remained absolutely unimpeached in the cross-examination. In that the defence has not been able to elicit anything from the cross-examination, of said Suman.
24. The version of Suman (P.W. No. 3) with regard to the occurrence of the incident receives complete corroboration from the evidence of Dnyandeo (P.W. No. 4). In that Dnyandeo (P.W. No. 4) has also stated that on the day and at the time of the incident he was proceeding along the road and the appellant was following him on the same road. Deceased Rajaram was also proceeding along the same road on opposite direction and he waited and talked with the deceased Rajaram for about two minutes. When he proceeded, he heard the screams of Suman (P.W. No. 3) and looked back and noticed the appellant assaulting the deceased Rajaram with an axe on his head. He also saw the deceased Rajaram lying on the ground. He was carrying taperecorder in his hand and when he saw the incident he dropped the same there and immediately rushed to the scene of offence and caught hold of the appellant. By that time the appellant had thrown away the axe from his hand. This witness further states that he took the appellant in the appellant's house tied him with the rope and kept him in the locked room. In the cross-examination this crucial aspect of the evidence of this witness has remained absolutely unimpeached. In that, as far as occurrence of the incident is concerned, nothing contrary has been put to this witness at all. This witness has been cross-examined with the view to find out whether the accused was behaving in abnormal manner to which he has given emphatic negative answer. This aspect will be considered little later on.
25. The other two witnesses - P.W. No. 2 Shewantabai Bapu Kalmbekar and P.W. No. 7 Subhas Balu Kalmbekar, who arrived at the scene little lateron have also deposed they having seen deceased Rajaram lying on the ground and the appellant standing there with the axe near Rajaram. Even this part of the evidence of both these witnesses have not been challenged in the cross-examination. There is yet another piece of evidence which will require to take note of and i.e. First Information Report lodged by P.W. No. 1 - Jagannath Dnyandev Salunkhe who although not an eye-witness and learnt about the incident and on the basis of which he lodged the FIR which has been produced as Exh-18. Exh-18 also contains the details of the incident as have been deposed to by the P.W. No. 3 - Suman Jaising Mhaskar and P.W. No. 4 - Dnyandeo Tukaram Kadam as noticed hereinabove. P.W. No. 1 - Jagannath Dnyandev Salunkhe before the Court has proved the FIR Exh-18 and has also vouched about its contents before the Court. Again in the cross-examination nothing has been brought out. The evidence of the said witnesses has also remained unaffected. Therefore the cumulative effect of the evidence of the above witnesses clearly goes to show that the prosecution has succeeded in establishing and proving the occurrence of the incident as deposed to by the aforesaid witnesses which clearly indicates that the appellant was an assaillant who assaulted the deceased Rajaram with the axe by inflicting blows on his head - two near the left ear and one on the neck.
26. We may note at this stage itself that as far as investigation is concerned and the manner in which the same is conducted, the same appears to be fair. The First Information Report has been lodged immediately and the investigation agency swung into action in time and took charge of the accused and recorded the statements of witnesses on the same day itself. It is also relevant to note that the defence has also not pointed out any flaw in the investigation.
27. The medical evidence as has been deposed to by Dr. Shoukatali Babalal Shaikah (P.W. No. 6) who conducted the autopsy on the dead body of deceased Rajaram also is in conformity and in consonance with the direct evidence on the point. In asmuchas the location of the injuries on the dead body of Rajaram as found and detected by Dr. Shoukatali Babalal Shaikh (P.W. No. 6) are in consonance and in conformity with the testimonies of the said witnesses. Further, said Dr. Shoukatali Babalal Shaikh (P.W. No. 6) has also opined that the injuries which he detected on the dead body of deceased Rajaram could be caused by a weapon like an axe. The axe which is stated to have been used by the appellant in commission of the offence was also shown to said witness Dr. Shoukatali Babalal Shaikh (P.W. No. 6) and he categorically stated that the injuries of the nature as he found on the dead body of deceased Rajaram could be caused by such a weapon. It will thus be noticed that the medical evidence adduced by the prosecution also corroborates the occular version of the material witnesses.
28. The fact that the deceased Rajaram suffered homicidal death has also been deposed to by Dr. Shoukatali Babalal Shaikh (P.W. No. 6). In that Dr. Shoukatali Babalal Shaikh (P.W. No. 6) has testified that injuries as were sustained by deceased Rajaram were ordinarily sufficient enough to cause his death. Pertinently this part of the evidence has also not been subjected to challenge in cross-examination on behalf of the appellant. Therefore the conspectus of the aforesaid discussion and the evidence would clearly go to show that it was the appellant who was the assasilant of deceased Rajaram who dealt blows with an axe on the vital part of his head causing the instantaneous death of deceased Rajaram. The evidence adduced by the prosecution clearly and beyond any Reasonable doubt establishes the said fact. The trial Court has considered the said evidence of the prosecution and has rightly reached the conclusion that it is the appellant who is responsible for causing the death of deceased Rajaram. The learned trial Judge has discussed and considered the evidence of the prosecution in detail as also we have done hereinabove. We are in agreement and in confirmity with the findings as recorded by the trial Judge as far as involvement and complicity of the appellant in the offence being the subject matter of this case is concerned.
29. The next question which is most important is whether the appellant is entitled to a benefit of exception as enjoined under Section 84 of Indian Penal Code. To be precise whether the appellant establishes that he was suffering from the unsoundness of mind at the time when the offence was committed. As a matter of fact good deal of argument was advanced by and on behalf of the appellant on this point.
30. Section 84 of the Indian Penal code provides as an exception and would exonerate the offender if the offender is found to be a person of unsound mind at the time of commission of the offence. In asmuchas, the said Section runs as under :
"84. Act of a person of unsound mind 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."
31. To establish the exception under Section 84 of the IPC it must be proved in a clear manner that at the time of the commission of the act as Section itself enjoins the perpetrator of the offender by reason of unsoundness of mind was incapable of either knowing the nature of the act or that acts were morally wrong or contrary to law. There has to be clearcut and cognet evidence with regard to the impairment of the cognitive faculty of the offender. This has to be proved and established by satisfactory evidence. Under Section 105 of Indian Evidence Act the burden is upon the offender who seeks the exception under the provisions of Section, 84 of IPC. It is true that burden to be discharged by the offender is not to the extent as a prosecution is required to do by proving its case beyond reasonable doubt. But nonetheless, the evidence and circumstances should be such as would, on the preponderance of probabilities would be suggestive of the fact that the appellant was labouring under unsoundness of mind so as to entitle to claim the benefit of reasonable doubt. In other words, atleast there should he some circumstance and material creating a reasonable doubt in that behalf. On this question, the state of mind of the offender before, at the time and after commission of the offence becomes very much relevant. This is a general principle of law enunciated and established by various decisions of the apex Court as also of the High Courts needing no further elaboration. In asmuchas, in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, , this is what. Their Lordships have discussed the legal position on the point. :
"(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of 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 Section 84 of the Indian Penal code : the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that 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 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."
32. As stated earlier, the appellant has examined six witnesses. We have already given the brief resume of the nature of testimony of each of the witnesses. Bearing in mind the legal principles as laid down by the apex Court in the decision mentioned above, the state of mind of the appellant would require to be considered at 3 different stages. It will be relevant to consider the conduct of the appellant preceding the incident, at the time of the incident and subsequent to the incident.
33. As far as the conduct of the appellant prior to the date of incident is concerned, he has examined 3 witnesses and they are Dr. Manjitsingh Ramkrishnasingh Palahe (D.W. No. 1) his wife - Lilabai w/o Bapu Mhaskar (D.W. No. 5) and his father-in-law - Shankar Daji Salunkhe (D.W. 6). Of all these 3 witnesses the evidence of Dr. Manjitsingh Ramkrishnasingh Palahe (D.W. No. 1) would require some detailed comments. Dr. Palahe (D.W. No. 1) has deposed that he is a Psychiatrist and in the month of November 1989 he had an occasion to examine the appellant. The appellant was brought to his dispensary first time on 3rd November 1989 and thereafter on 18th, 24th November, 9th December, 18th December and 24th December 1989. He diagnosed the nature of ailment of appellant as schizophrensic psychois. According to the said Doctor, he prescribed some medicines to the appellant. On 24th December 1989 when he examined last, he found the appellant to have been improved and fit for resumption on his duties. He issued a fitness Certificate to the appellant to that effect certifying that appellant was fit to resume and join his work. The xerox copy Of the said Certificate dated 24th December 1989 which is Exh-36 is on record. The said Doctor Palahe (D.W. No. 1) has also deposed that in case the patient suffering from Schizophrenic psychosis discontinued the medicines then there is possibility of said disease being relapsed. This witness has been subjected to cross-examination and the same would require to be considered in some what detail. It was put to this witness that whether he has maintained the Medical Register which is necessary to be maintained under the rules and regulations of the Medical Council to which he gave negative reply. Instead, he has stated that he maintained a diary and it appears that he placed the said diary for the perusal of the trial Court and it turned out to be that during the entire month of November 1989 in that diary except the name of the appellant no names of his other patients were mentioned. For the major part of period of that month the pages in the diary were blank. In asmuchas, on 2nd, 4th, 6th, 8th, 9th, 11th, 13th, 14th, 16th, 17th, 20th, to 23rd November 1989 pages in his diary were blank. Further from 16th November 1989 to 29th November 1989 there was not a single entry in the said diary except the entry about the alleged visit of the appellant in his dispensary. Considering the state of evidence as made available by the said witness and in view of his admission in the cross-examination, the learned trial Judge did not believe the evidence of Dr. Palahe (D.W. No. 1) and in our view the learned Sessions Judge was justified and right in disbeliving and disregarding the evidence of the said witness.
34. Under the rules and regulations of the Medical Council, it is incumbent upon every Medical Practitioner to maintain a Medical Register. Dr. Palahe (D.W. No. 1) is a qualified Doctor possessing M. D. Degree and he has stated that he was having his private practice and was also attached to public Mental Hospital. If that is the position, then it is unlikely that such a qualified Doctor would not maintain a register which is a must for every Medical Practitioner. The Medical Register has not admittedly been produced so also no evidence is made available by the Doctor in respect of his professional fee from the appellant when he claimed to have examined him on 3 or 4 occasions. Instead, he produced a diary which as stated contains number of blank pages and except the entry pertaining to the appellant there were no entries in respect of other patients. This certainly creates a strong and justifiable doubt about the authenticity and genuineness of the diary. The learned trial Judge was therefore right in rejecting the said evidence of Dr. Palahe (D.W. No. 1). On consideration of the evidence, we have also doubt whether this Doctor had examined the appellant at any time in the past.
35. Even assuming that this Doctor had examined the appellant then on his own showing on the basis of Certificate dated 24th December 1989, a xerox copy being Exh-36 on record, he has certified him to have been improved and being fit for resumption on his duties. Said Certificate mentions that as from 25th December 1989 the appellant was perfectly fit to resume on his work. The incident has taken place barely after 10 days after the issuance of the said Certificate wherein the Doctor certified the appellant as having been improved. It is not pointed out that during these 10 days anything has happened to the appellant resulting into relapse of his said ailment. The material is absolutely wanting in this regard.
36. Now, there remains the evidence of two witnesses viz. wife - Lilabai Bapu Mhaskar (D.W. No. 5) and father-in-law - Shankar Daji Salunkhe (D.W. No. 6). It is in their evidence that appellant was gainfully employed in some Textile Mill in Bombay and he was residing in Bombay. The evidence shows that he was working since about last 16 years in the said Mill. D.W. No. 5 - Lilabai, the wife of the appellant has stated that about 10 or 12 days the appellant was not behaving in a proper manner in the house. He was not taking the meal and used to tear his clothes and therefore he was brought from Bombay to native place. Shankar Daji Salunkhe (D.W. No. 6) - father-in-law of the appellant also states he having taken the appellant to Dr. Manjitsingh Ramkrishnasingh Palahe (D.W. No. 1) for treatment. He has also stated that because of the treatment given to him by said Doctor the appellant got relief. He has stated that the appellant used to throw stones at his daughter i.e. D.W. No. 5 - Lilabai and also illtreat his child. It is most necessary to note that both these witnesses - wife and father-in-law of the appellant have said about the conduct of the appellant obviously after 25th December 1989. This is in the background of the fact that Doctor has certified the appellant as being fit. The witness Shankar Daji Salunkhe (D.W. No. 6) has also stated that because of the treatment the appellant had got relief. Dr. Manjitsingh also certified the Appellant having improved and fit for resumption on his work. Notwithstanding this, both these witnesses want to say that between the period of 10 days i.e. 25th December 1989 to 5th January 1990 the day of the incident the appellant behaved in an abnormal manner.
37. The evidence of these two witnesses creates a serious doubt about its truthfulness and correctness. It is more so when according to Shankar Daji Salunkhe (D.W. No. 6) the appellant had got relief because of the treatment given by Dr. Palahe (D.W. No. 1). If indeed the appellant has behaved in a manner as both these witnesses are now trying to state, then it was expected that they would have taken him to the same Doctor or given necessary medical treatment because of his abnormal behaviour and conduct. On the contrary, it is noticed that the appellant was brought to native place. Further if the appellant was behaving in the fashion and manner as has been deposed to by these witnesses then it was unlikely that on the day of the incident they would have allowed him to go out alone.
38. There is yet one more circumstance which would require to take notice of. It is in the evidence that appellant was gainfully employed in the Textile Mill at Bombay for about 16 years. If indeed the appellant was behaving in abnormal manner and has also behaved in that fashion at the place of his work then it was expected that some evidence could have been indeed made available before the Court from the end of his Employer. This has not been done. That could have been an independent evidence which was easily available. None of the villagers from that village have also been examined. All these circumstances, therefore, create a reasonable but strong doubt about the creditworthyness of these two witnesses. We wish to clarify that although they are related to the appellant that fact by itself has not weighted in our mind. Therefore considering the nature of evidence as has been adduced through these two witnesses, in our view the same does not inspire any confidence and also prove the case of the appellant of his unsoundness of his mind.
39. Therefore, there is nothing to indicate that the conduct of the appellant preceding the incident was abnormal suggestive of his unsoundness of mind.
40. We would now consider the conduct of the appellant at the time of actual occurrance of the incident.
41. It is in the evidence of Dnyandev Tukaram Kadam (P.W. No. 4) that at the time of incident he met deceased Rajaram on the road and he had words with him for about two minutes. The appellant was behind him. As noticed earlier, the appellant has assaulted the deceased Rajaram almost immediately thereafter. It shows that the appellant was alone passing along that road and when Dnyandeo (D.W. No. 4) met and chitchated with Rajaram, he must have waited at that place. Furthermore factor having bearing on the conduct of the appellant is that when Dnyandev (P.W. No. 4) left the deceased Rajaram and proceeded further the appellant went off the road, entered into the back-yard of the house of Suman (P.W. No. 3) picked up the axe and rushed to deceased Rajaram and inflicted 3 blows on the head of Rajaram with the axe. The appellant has picked up the weapon which is a deadly weapon by any reckoning. He also choosed the target of attack none other than deceased Rajaram when there were other persons present at that place. The blows are inflicted on the most vital part of the body. Number of blows inflicted are only three. If indeed the appellant had perpetrated the said act in a fit of madness or unsoundness of mind that it was not expected that he would go off the road to pick up the weapon like axe. He could have used any object if he was acting under the fit of madness, available at that place. His selection of the weapon is also a circumstances which is a glaring and clinching one and would speak a volume about his behaviour and conduct. If indeed the appellant was suffering from unsoundness of mind and behaving in abnormal manner as has been tried to be made out by the defence and when there, it is stated that appellant used to throw stones then there would not have been dirth on the road in village about the stones which could have been easily used. Instead, as stated earlier he has used the deadly weapon like an axe which was also away from the place at the material time.
42. Some point was sought to be made by reading the evidence of eye-witnesses that the appellant after inflicting blows waited at that place of the incident itself and it would be taken to mean that he was not in a normal faculties at that time. However, we do not find any substance and merit in this sort of submission. In this respect the evidence of Dnyandev (P.W. No. 4) is very material. The presence of Dnyandev (P.W. No. 4) at the place is not in dispute. As a matter of fact it stands amply established, on hearing the screams of Suman (P.W. No. 3) Dnyandev (P.W. No. 4) has thrown away the tape-recorder from his hand and rushed to the place where the deceased was attacked by the appellant and he immediately caught the appellant. If that was the case and indeed it is a case as is clearly borne out then there was no question of the appellant standing for such a long time so as to infer otherwise.
43. At this juncture, It would also be useful to make reference to the condition of the appellant when he was put under arrest. The arrest Panchanama Exh-14 is very important document in this context which has been exhibited as provided under Section 294 of the Criminal Procedure Code the same document can be read in evidence. The appellant was put under arrest by S.I. Shinde (P.W. No. 8) few hours after the incident and Panchanama mentions that at the time of arresting the appellant responded as normal person by giving his name and address. Panchanama does not show that accused/appellant was behaving in any abnormal manner. It is also relevant to note that nothing has been put on behalf of the defence in cross-examination to S. I. Shinde (P.W. No. 8) the Investigation Officer in this respect. This would show that at the time when the appellant was put under arrest few hours after the incident, he behaved in normal manner. Atleast there is nothing abnormality pointed out in the conduct of the appellant.
44. This circumstances, therefore, will show that the conduct of the appellant at the time when the offence was committed did not disclose or indicate any ailment of abnormality to justify and infer that he was suffering from unsoundness of mind.
45. As far as post conduct of the appellant is concerned, 3 witnesses are examined and they are connected with the Jail, where the appellant was lodged after preliminary period in the police custody. These witnesses are Vasant Pandurang Patil (D.W. No. 2) Jailor attached to sub-Jail Karad, where the appellant was brought on 11th January 1990 i.e. after 5 days of the occurrence of the incident. He was kept there for two days. This witness has stated that accused/appellant was behaving in abnormal manner at that time. But in the cross-examination he has stated that under-trial accused involved in serious offences have tendency to behave in abnormal manner. The next witness is Shaikh Ahamad Shaikh Usman (D.W. No. 3) - a Jail Constable attached to Satara Jail who has stated that appellant was brought to the Jail on 13th January 1990 and as he was behaving like a mad man he was kept in a separate cell. He too has stated that generally the under trials lodged in the Jail have tendency to behave in abnormal manner as was deposed to by D.W. No. 2. He has further stated that in case of any under-trial suffering from mental ailment, then he is referred to the Civil Hospital. The 3rd witness is Shivdas Dagadudas Bairagi (D.W. No. 4) a Constable attached to Satara Jail. He has stated that appellant was kept in a separate Cell because of his abnormal behaviour. He has also stated in the cross-examination that there were other inmates in the Jail who also used to behave in a similar manner like the appellant.
46. The evidence of these 3 witnesses has relevance considering the subsequent conduct of the appellant. An attempt was made in a nebulous manner by relying upon the testimony of these 3 witnesses that the appellant was a mad person and therefore he should be given benefit under Section 84 of IPC.
47. It needs to be noted that immediately after arrest, the appellant was kept in the police custody and from the evidence of PSI Shinde (P.W. No. 8) it is noticed that accused/appellant behaved as a normal person and suggestions put to him in cross-examination that he behaved like a mad man has been totally rejected and denied by this witness. PSI Shinde (P.W. No. 8) is talking about the conduct of the appellant immediately after his arrest for a period of first 5/6 days. We have already noticed the conduct of the appellant at the lime when he was put under the arrest.
48. Therefore considering the evidence made available by and on behalf of the appellant in support of his subsequent conduct through the above mentioned witnesses, we are of the considerate view that the same does not render any assistance or advance the defence of the appellant with regard to the unsoundness of mind.
49. At this stage, it is necessary to note that the appellant thereafter and even till today has remained in the Jail. The trial was commenced in the middle of 1992 and the impugned Judgment has been pronounced on 4th September 1992. The learned trial Judge in para 30 of his Judgment has recorded his impression to which we are in agreement with and therefore reproduce.
"..... It is also matter of record that during remand of the accused by the Court and during period, he was in Magistrate. Custody, there was no reference at any time that accused is mad person and therefore, it is necessary to get him examined by the Civil Surgeon. Even behaviour of the accused before this Court was also not like a person of unsound mind."
50. We may also add that the appellant has been examined as required under Section 313 of the Criminal Procedure Code and on perusal of the answers given by him at the time of trial before the trial Judge, one would certainly notice that he has been very cautious and guarded in answering questions put to him in sensible manner. Furthermore, for all these days, the appellant has remained in the Jail. If indeed, he was a person suffering from unsoundness of mind, then he would not have been kept in the Jail but referred to in the Mental Hospital. This has not been done, nor any steps taken by the appellant or on behalf of him for lodging him in the Mental Hospital for his ailment. This is a circumstance, which is a important one and which would militate against the defence as set forth by the appellant. Therefore, considering the nature of evidence adduced by and on behalf of the appellant in support of his plea of unsoundness of mind and seeking exception under Section 84 of IPC., in our view the appellant has not been able to convincingly establish and prove that he is suffering from unsoundness of mind so as to entitle for the benefit of exception under the said Section. The learned trial Judge in our view has also considered all these aspects in proper perspectives and we are also in agreement with the same. Taking into consideration over all picture of the evidence discussed above and totality of the circumstances, we are of the considerate view that it is an exercise on the part of the appellant which smacks of an attempt of pretended insanity.
51. The learned Counsel for the appellant Mrs. Bhonsale, referred to certain decisions which we proceed to consider.
(1) In the case of Prakash v. State of Maharashtra, reported in 1985 Cri LJ 196 (Bom).
(2) Nivrutti Dhondiba Shinde v. State of Maharashtra reported in 1985, Cri LJ 449 (Bom).
(3) Saraswati Mahadeo Jadyal v. State of Maharashtra, reported in 1993 Mah LJ 1529.
(4) Pundalik Laxman Chavan v. State of Maharashtra, reported in 1994 Mah LJ 1094.
52. In the first case viz. Prakash's (supra) the fact disclosed that the accused in that case was admittedly a patient in the past in the Mental Hospital and even after his arrest he was treated in the Mental Hospital.
In the case of Nivrutti Dhondiba Shinde (1985 Cri LJ 449) (Bom) (supra) there was a clear and positive evidence about the abnormal and queer behaviour of the appellant on the day of incident itself.
In Saraswati Mahadeo's (1993 Mah LJ 1529)(supra) case, on evidence it was proved that even in the past, the appellant/accused in that case in the fit of insanity has killed her own child and who was suffering from mental ailment for which she was treated in the Mental Hospital.
Likewise in Pundalik's (1994 Mah LJ 1094)(supra) case, there was a clinching evidence in respect of the abnormal behaviour and the conduct of the appellant suggestive and indicative that he suffered from unsoundness of mind. In the circumstances, whereas this is not the position as discussed hereinabove in the case of the appellant herein. This being the position the decisions referred to and cited on behalf of the appellant referred to above would not be of any assistance to the appellant as the facts and circumstances obtained in those decisions and in the matter in hand are different and distinguishable.
53. There is one more aspect of the matter and that is there being a motive for the appellant to commit the offence alleged in this case. The prosecution has adduced the evidence in that respect. That the learned trial Judge has dealt with in some-what detail. It is undisputed position that the appellant and deceased Rajaram were the residents of the same village. There is also evidence that both owned agricultural landed properties in the said village which were adjacent to each other. It is the case of the prosecution that there was a dispute over the boundary of the agricultural lands belonging to both of them. This has been deposed to by the (P.W. No. 1) Jagannath Dnyandev Salunkhe, (P.W. No. 2) - Shewantabai Bapu Kalmbekar, (P.W. No. 3) - Suman Jaisingh Mhaskar, (P.W. No. 5) - Parubai Rajaram Mhaskar and (P.W. No. 7) Subhas Balu Kalmbekar. It is most pertinent to note that all these witnesses with one voice have deposed about the existence of dispute between the appellant and the deceased Rajaram. The most signficant factor is that in the cross-examination of all these witnesses on behalf of the appellant this aspect of their evidence has not at all been touched or dealt with at all. In as much as in the cross-examination even no contrary suggestion in a remote manner has been made. The evidence of these witnesses has thus remained unchallenged, uncontroverted and therefore unaffected and there is no other reason pointed out to disbelieve their evidence or discard the same. The witnesses have also deposed there being a quarrel between the wife of the appellant and the wife of deceased Rajaram (P.W. No. 5) about couple of months prior to the incident and this has also been got confirmed in the cross-examination on behalf of the appellant. All this would show that the relations between the appellant and deceased Rajaram were not good but they were strained. This would certainly provide as a motive for the offence. It may be stated that motive is not necessarily relevant factor while considering the culpability of a person charged of the offence. But, since there is an evidence which, as stated earlier is a clinching one, the same is required to be taken into consideration. This is one more factor which strengthens the case of the prosecution.
54. To conclude, therefore, we do not find any merits in this appeal. The complicity of the appellant in the offence being the subject matter of this matter as held earlier stands established clearly and beyond any reasonable doubt. The plea set forth by the appellant of unsoundness of mind claiming benefit under Section 84 of Indian Penal Code has not been convincingly established and therefore it is held that he fails to bring his case under exception of the said provision. The appeal therefore fails. We do not find any merits in this appeal. The appeal of the appellant therefore stands dismissed and his conviction and sentence awarded by the learned IInd Additional Sessions Judge, Satara in Sessions Case No. 87/90 vide the impugned Judgment dated 4th September 1992, stands confirmed. C.C. expedited.
55. Appeal dismissed.