Gauhati High Court
Gopal Bhowmik vs State Of Tripura on 16 March, 2001
Equivalent citations: 2001CRILJ2656
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT B.B. Deb, J.
1. The present Criminal Appeal arises out of the judgment of conviction and sentence dated 29.6.1996 imposed by the learned Additional Sessions Judge (Mr. M.C. Roy), West Tripura, Agartala in Sessions Trial No. 25(W.T/A) of 1994.
2. By the impugned judgment, the learned trial court convicted the appellant Shri Gopal Bhowmik under section 302 IPC with a sentence of Rigorous Imprisonment for life and also under section 326 IPC with a sentence to suffer Rigorous Imprisonment for five years with a further direction that both the sentences would run concurrently.
3. The prosecution case, in short, is that on 21.8.1990 in the evening the appellant Shri Gopal Bhowmik came to the house of his relative Shri Pradip Roy. The appellant is the husband of the sister of Shri Pradip Roy of Amtali. Shri Pradip Roy was not available in the house. His wife Smti Swapna Roy and daughters Bulti alias Prativa and Papan alias Papri had been there in the house. The appellant being close relative came and asked Smti Swapna Roy to cook kichuri (hotch potch) and told her that he would stay for the night and stayed the night. During the fag-end of the night while the inmates, namely, Smti Swapna Roy and her two daughters Bulti alias Prativa and Papan alias Papri were sleeping, suddenly the appellant having entered into the room gave a dao blow in the cheek of Swapna, Swapna woke up and tried to resist the second attempt being made by the appellant with the dao, but the second dao blow chopped off her right hand at wrist level. Thereafter, the appellant gave further dao below on her. Hearing the cry of mother, both the daughters woke up but unfortunately the appellant gave dao blow to Bulti alias Prativa, as a result Bulti became unconscious having sustained grievous injury. The appellant also gave another dao blow to the youngest daughter of Swapna and all sustained injuries. Being attracted by the alarming cry of the inmates, the neighbouring people rushed to the spot. That happened at about 5-30 A.M., the early morning of 22.8.1990. Oh seeing the people the accused fled away and as such none could apprehend him on the spot. All the injured were sent to G.B. Hospital, Agartala where injured Bulti alias Prativa succumbed to the injury on 22.8.1990 itself.
After investigation police submitted charge-sheet against the appellant under section 302/326 IPC. The case being exclusively triable by the court of Sessions, the learned Magistrate committed the case and the learned Sessions Judge framed charges on 10.8.1994 under section 302/326/307 IPC and transferred the case to the court of learned Additional Sessions Judge, West Tripura, Agartala.
4. Charge under section 302 IPC was framed for causing culpable homicide so far the deceased Bulti is concerned and Charges under section 326/307 IPC were framed so far the grievous hurt committed in relation to the injured Smti Swapna Roy and Ms. Papan Roy are concerned.
5. Since the incident of assault causing death and grievous injuries remained not challenged by the defence during trial and also during argument in the appeal, reproduction of the charges in this judgment is conveniently avoided.
6. The oral testimonies of two injured eye witnesses namely Smti Swapna Roy (P.W.5) and Ms. Papan Roy alias Papri (PW 6) unquestionably inspire the unhesitant confidence as to the commission of the incident of assault by the appellant causing death to injured Bulti and grievous hurt to injured Swapna Roy and simple hurt to Ms. Papan Roy and there left nothing to infer a second view.
7. From the evidence of Dr. Pijush Kanti Das (PW 8) who held autopsy on the corpus of Bulti Roy (good name Prativa Roy), it remains proved beyond doubt that the injuries sustained by Bulti were sufficient for causing death. The nature of injuries found in the corpus of Bulti were of following nature as available from the testimony of Dr. P.K. Das (PW 8):-
"(1) Sharp cut grievous injuries left side of the neck involving muscles, vessels, trachea and oesophagous thyroid, length of injury 4" x 1" x 1".
(2) Sharp cut injury left mendidular region 4" x 1" in to bone.
(3) Profus blood with clot in the effected place. Death was due to cardio resperatory failure followed by shock and procure haemorrhage. Homicidal injury (grievous)."
8. From the corroborative evidences of the neighbouring people who happened to be in the house of Smti Swapna Roy just immediately after the incident being attracted by the cries of the inmates unequivocally, it transpires that they were reported about the incident by Smti Swapna Roy on the spot and we find no contradiction and/or discrepancy in their versions and as such in our considered opinion, the finding arrived at by the learned trial court that it was the appellant who caused the death of Bulti Roy alias Prativa and injuries to Smti Swapna Roy and Ms. Papan Roy alias Papri, is based on convincing evidence and we affirm the said findings.
9. The learned senior counsel Mr. B. Das, appearing on behalf of the appellant as Amicus Curiae raised the plea of insanity being suffered by the appellant Shri Gopal Bhowmik. Having referred the evidence on record, Mr. Das submits that there was no motive behind, there was not subsisting enmity between, there was no provocation from either side at any point of time before the incident and as such it was quite improbable, according to the learned senior counsel for the appellant, to commit such type of heinous crime on his close relatives had the appellant been a sane one at the relevant time and having made the submission as such, the learned senior counsel submits that the appellant for his mental suffering at the relevant time has been immuned from the liability of any criminal offence in view of section 84 of the IPC.
Section 84 IPC is quoted below:-
"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."
10. The learned senior counsel for the appellant invited our attention to the testimonies of D.Ws., particularly D.W.1 Smti Tapashi Bhowmik, the wife of the appellant D.W.5, Dr. Jiban Chakraborty, a psychiatric. On perusal, it appears that D.W.5, Dr. Jiban Chakraborty claimed to have attended the appellant on 11.6.1990 in his chamber and again on 15.2.1994. According to him, the appellant was a mental patient but he was not found, on examination, to be violent. He detected some symptoms of mental illness of his patient, Shri Gopal Bhowmik and he proved some prescriptions. But after 25.2.1994 he never attended the patient. On perusing the prescriptions this witness further deposed that on 17.1.1991, the appellant might have been attended by another doctor of G.B. Hospital, Agartala, namely, Dr. A.K. Nath.
11. Since the incident of commission of offence occurred on 21.8.1990, the evidence of D.W.5 appears to be of not much help as the attending doctor D.W.5 never disclosed the past history of the appellant. Whether the appellant has been a mental patient having continuous suffering of insanity, has not been revealed from the testimony of Dr. Jiban Chakraborty, D.W.5.
12. The learned senior counsel for the appellant drew our attention to the deposition of D.W.2 brother of the appellant. He deposed that on 11.6.1990, he took the appellant in the chamber of D.W.5 for treatment and again on 21.8.1990. This witness along with the wife of the appellant took the appellant in the chamber of D.W.5 at 2/2-30 P.M., but before meeting the doctor the appellant fled away from the chamber. D.W. 1, the wife of the appellant also stated in the same manner, but unfortunately no convincing evidence from any independent witness could be brought on record by the defence to prove the insanity suffered with by the appellant at the relevant time with a definite narration of the degree of insanity.
13. The plea of insanity is a legal defence, to claim immunity from the penal consequence under Indian Penal Code as available under section 84 of the IPC and as such the onus heavily lies upon the defence to substantiate the plea of insanity in order to avail the benefit of the Section 84 IPC.
14. The provision of Section 84 IPC contemplates that by reason of unsoundness of mind, if one is incapable of knowing the nature of the act and/or incapable of knowing that he is doing what is either wrong or contrary to law, may claim the immunity from criminal liability. Thus from the definition it appears that the unsoundness of mind may be due to different reasons like -
(i) an idiot who is of non-sane memory from his birth;
(ii) non compos mentis due to complicated mental illness under the influence of mental disorderness;
(iii) lunatic or madman who is affected by mental disorder for certain period having intervals of reasons or madness in perpetuity as a consequence of complicated mental illness. Idiocy is a natural insanity, madness and lunacy are acquired insanity.
15. Insanity or unsoundness of mind itself does not permit to avail the benefit of Section 84 IPC unless it is proved that at the relevant time of commission of offence, the person concerned was of such a degree of unsoundness of mind making him incapable of knowing the nature of the act.
16. In the present case, it reveals that in the preceding evening the appellant came to the house of his relative Smti Swapna Roy and requested her for cooking Khichuri (hotch potch) as night meal and also expressed his desire to stay for the night. Had there been any past history of insanity or had there been any exposure of mis-behaviour or unusual conduct detached, the relative Smti Swapna Roy would not have allowed the appellant to stay in her house for that night. From the evidence on record, both of prosecution and the defence, it has not been revealed that just preceding to and/or subsequent to the incident anybody noticed any unusual movement, unmannerly behaviour of the appellant, either in his physical movement or in his conversation. Mere Feeble mindedness, mere frenzy, emotional imbalance or uncontrolable anger or eccentricity do not offer any relief to be claimed under the provision of Section 84 IPC. Unless it is proved of course on pre-ponderence of probabilities of evidence by the defence that at the relevant time of commission of the murder/grievous injury, the accused was incapable of knowing the consequence of the act he done (sic) due to mental disorderness, the accused cannot get the statutory benefit of section 84 IPC.
17. From order sheet dated 26.8.1990 available in the lower court record, it transpires that the appellant was produced under arrest before the learned Chief Judicial Magistrate, West Tripura, Agartala and was remanded to jail custody. On 28.8.1990 the appellant was again produced before the learned Chief Judicial Magistrate, West Tripura, Agartala for recording his confessional statement, but the appellant prayed further time for reflection and that was allowed. On 30.8.1990 the appellant was again produced before the learned Judicial Magistrate Ist Class for recording his confessional statement under section 164 Cr.P.C., but the appellant prayed for three day's time for his reflection and that was allowed. Thus from the public record maintained by the learned Judicial Officers in the instant case, it reveals that the appellant was found to be of sound mind. He was in custody for considerable period of time but his wife or his brother never approached the court at the earliest opportunity with the plea of insanity. It is on evidence that just after the incident while the neighbours rushed to the house of Smti Swapna Roy, the appellant started running away. Though some of the neighbours tried to chase him, but failed. It is on record that the appellant was apprehended by BSF personnel and handed over to Bishalgarh Police five days after the incident. Had he been an insane, the appellant could not have fled away. The wife and brother of the appellant would have promptly reacted and made contact with the Investigating Officer disclosing the alleged history of past insanity, but the silence on the part of the relatives of the appellant and the immediate conduct of the appellant himself led us to disbelieve the plea of insanity raised by the defence.
18. Of course the learned defence counsel made an application on 22.2.1995 praying for adjournment of the case sine die on the ground of insanity of the appellant. The learned sessions Judge vide order dated 20.3.1995 referred the appellant to the Superintendent, G.P. Hospital, Agartala for holding examination/ investigation of the appellant to ascertain his insanity as contemplated under section 328/329 Cr.P.C. On perusal of the medical investigation/inquiry report, the learned trial court being satisfied as to the mental soundness of the appellant commenced with the trial. There is no documentary evidence on record, either medico evidence or otherwise nor there is any convincing parole evidence suggesting any inference to be drawn that at the relevant time the appellant was suffering from such mental disorderness/ insanity depriving his capability of knowing the nature and consequence of the act he had done and as such we are of the considered opinion that the appellant has failed to make out a case to provide him with the benefit of section 84 IPC.
19. In view of the discussions and analysis made herein above, the appeal being devoid of merit is hereby dismissed and the conviction and sentence imposed by the learned court below are upheld.