Karnataka High Court
Ramanna S/O Narsappa vs The State Of Karnataka on 16 June, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-K:4907-DB
CRL.A No. 200185 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH R
DATED THIS THE 16TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.200185 OF 2016
BETWEEN:
1. RAMANNA S/O NARSAPPA
AGE:27 YEARS, R/O:NEAR MANVI,
TQ:MANVI, DIST:RAICHUR.
...APPELLANT
(BY SRI.SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally signed
by SACHIN
THROUGH THE PSI, MANVI P.S. DIST:RAICHUR, REP,
Location: HIGH
COURT OF
BY THE ADDL. STATE PUBLIC PROSECUTOR, HIGH
KARNATAKA
COURT OF KARNATAKA KALABURAGI BENCH.
...RESPONDENT
(BY SRI.PRAKASH YELI, ADDL. SPP)
THIS CRL.A. FILED U/S.374(2) OF CR.P.C PRAYING THAT
THIS HON'BLE COURT TO ADMIT THIS APPEAL CALL FOR THE
RECORDS FROM THE COURT BELOW, ALLOW THIS APPEAL AND
THEREBY SET ASIDE THE JUDGMENT & ORDER OF
CONVICTION DATED:23.09.2016 PASSED IN SESSIONS CASE
NO.102/2011 BY THE ADDL. DIST & SESSIONS JUDGE,
RAICHUR FOR THE OFFENCES PUNISHABLE U/S 302 AND 307
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NC: 2023:KHC-K:4907-DB
CRL.A No. 200185 of 2016
IPC AND ACQUIT THE APPELLANT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS CRL.A HAVING BEEN HEARD, RESERVED FOR
JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR J.,
PRONOUNCED THE FOLLOWING JUDGMENT THROUGH VIDEO
CONFERENCE:
JUDGMENT
The appellant/accused has preferred this appeal under Section 374(2) of Cr.PC. being aggrieved and dissatisfied with the judgment of his conviction and sentence passed by the Addl. District and Sessions Judge Raichur in Sessions Case No.102/2011 (arising out of Manvi PS Crime No.316/2010) for the offences punishable under Sec. 302 and 307 of IPC.
2. That the Manvi Police have filed the charge sheet against the accused alleging the offences punishable under Sections 302 and 307 of IPC.
3. That one Muniswamy S/o. Ramanna resident of the address so stated in Ex.P2 submitted a statement before the PSI, Law and Order, Manvi Police Station on 20.11.2010 at 2.00 p.m. stating that in their village Neermanvi, there exists a private school by name Siddaroodha Primary School near Yellamma temple. That one Prabhu S/o. Siddappa Kurubar R/o. Nagarbetta Tq. Muddebihal runs the said school. In the said -3- NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 school, a resident of his village, Ramanna S/o. Narasappa i.e. accused is working as a teacher. It is stated that not only the children of his village but also the children of other surrounding villages attend the said school. The parents of respective children accompany them to the school. In between the said school and the village, there exists Raichur-Manvi Main Road. Therefore, the children attending the school are being helped by any of the teacher to cross the road.
4. It is specifically stated by the complainant that, as usual, on 20.11.2010, the children of his village by name Kum.Gagana D/o.Chandrashekhar, aged 5 years studying in LKG, Basavaraj S/o. Sannalingappa Chagi aged 10 years, studying in 4th Standard and Indrakumar alias Goud S/o. Hanamantha aged 11 years studying in 5th std. were left to the school by their respective parents. At 1.30 p.m as it was Saturday, the school time was over and all the children were returning to their respective houses by crossing the road. The accused being a teacher, was helping the children to cross the road. All the children and accused came in front of main door of Yellamma temple. It was 1.45 p.m. at that time. Towards left side of the Yellamma temple, there exists a well. This -4- NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 complainant and one Ramanna S/o.Irappnan Arakeri were moving towards said Yellamma temple. At that time, accused when he was helping the children to cross the road, took one girl, lifted her and thrown the said girl in the well likewise, he also threw the said boys in the said well and then he also jumped in the well. At that time, one Amaresh S/o.Chandrashekar aged 14 years resident of Neeramanavi was there. He started weeping. On noticing the said incident, this complainant and Ramanna Arakeri got down in the well. At that time, they noticed accused Ramanna teacher was found pushing the girl by putting his hand on her head. Both abused Ramanna teacher and rescued two boys but they could not rescue the said girl. They dragged the boys by holding their hands. Basavaraj had sustained injury on his forehead. Indrakumar has not sustained any injuries. Thereafter, all came out of the well including accused. They enquired with Amaresh and it was informed that said girl Gagana D/o.Chandrashekar was thrown by the accused and she was no more. By that time, the people of the village came running towards the well. The said well was very deep and it was full of water. Though they searched Gagana but they could not get her. On getting the -5- NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 information, the Manvi Police came there and got emptied the entire water with the help of water pump and noticed the dead body of Kumari Gagana. Thus, it is alleged that with an intention to cause murder of the said three children, accused lifted them and threw in the said well and because of the same, Gagana died as accused pushed her head when she was in the well. He caused her murder. It is alleged that there was an attempt to cause murder of other two boys by throwing them into the well by the accused.
5. With these allegations, he gave statement as per Ex.P2. before PW.21 Dayananda when he came to the spot. Based upon that, he registered the case and set the criminal law into motion. He conducted the investigation in-part and thereafter, handed over the investigation to one Sharanappa Olekar the then CPI of Manvi police Station. This PW.22 also rushed to the scene of offence along with PSI, conducted the investigation, sent the dead body for post mortem. Recorded the statement of the witnesses. After obtaining relevant records and after completion of investigation, he filed charge sheet before the jurisdictional magistrate. -6-
NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016
6. The jurisdictional Magistrate, after filing charge sheet, took cognizance of the offence. On the day of incident itself accused was arrested by the police, thereafter, he was remanded to the Judicial Custody from time to time. The presence of the accused was secured and he was committed to the Court of Sessions for trial.
7. After committal, the learned Addl. Sessions Judge, after hearing both the side, framed charges against the accused for the offence under Sections 302 and 307 of IPC, read over the same. Accused pleaded not guilty and claimed to be tried.
8. Before the learned trial Court, to prove the guilt of the accused, prosecution in all, examined 20 witnesses from PWs.1 to 20 and got marked Exs.P1 to P16 with respect to signatures thereon. So also marked MO Nos. 1to 6 and closed the prosecution evidence. Thereafter, accused was questioned under Sec.313 of Cr.PC so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime, prayed the court to lead defence evidence. Accordingly, on his behalf -7- NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 examined three witnesses being the doctors as Dws.1 to 3 and got marked Ex.D1 to D4. Closed defence evidence.
9. Thereafter, learned Trial Court, having heard the arguments and on perusal of the records, found the accused guilty and recorded the conviction and sentence against the accused as under:
DzÉñÀ (1) ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉAiÀÄ PÀ®A 302 gÀ ªÉÄÃgÉUÉ ªÀiÁrzÀ zÀAqÀ£ÁºÀð C¥ÀgÁzsPÀ ÉÌ F DgÉÆævÀ¤UÉ D fêÀ PÁgÁªÁ¸À (LIFE IMPRISONMENT) zÀ PÀpt ²PÉA ë iÀÄ£ÀÄß «¢ü¹zÉ ªÀÄvÀÄÛ 50,000/- UÀ¼À dįÁä£A É iÀÄ£ÀÄß «¢ü¹zÉ.
MAzÀÄ ªÉÃ¼É dįÁä£É PÀlÄÖª° À è «¥s® À £ÁzÀgÉ ªÀÄvÉÛ MAzÀÄ ªÀµð À zÀ PÀpt PÁgÁªÁ¸À ²PÉë C£ÀĨs« À ¸ÀvPÀ ÀÌzA É zÀÄ DzÉò¹zÉ.
(2) ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉAiÀÄ PÀ®A 307 gÀ ªÉÄÃgÉUÉ ªÀiÁrzÀ zÀAqÀ£ÁºÀð C¥ÀgÁzsPÀ ÉÌ F DgÉÆævÀ¤UÉ 10 (ºÀvÀÄ)Û ªÀµðÀ UÀ¼À CªÀ¢A ü iÀÄ PÀpt PÁgÁªÁ¸ÀzÀ ²PÉA ë iÀÄ£ÀÄß «¢ü¹zÉ ªÀÄvÀÄÛ 25,000/- UÀ¼À dįÁä£A É iÀÄ£ÀÄß «¢ü¹zÉ. MAzÀÄ ªÉÃ¼É dįÁä£É PÀlÄÖª° À è «¥s® À £ÁzÀgÉ ªÀÄvÉÛ 05 (LzÀÄ) wAUÀ¼À PÀpt PÁgÁªÁ¸À ²PÉë C£ÀĨs« À ¸ÀvPÀ ÀÌzA É zÀÄ DzÉò¹zÉ.
zÀAqÀ ¥ÀQæ A æ iÀÄ ¸ÀA»vÉAiÀÄ PÀ®A 428gÀ ªÉÄÃgÉUÉ DgÉÆævÀ£ÀÄ £ÁåAiÀiÁ®AiÀÄzÀ §Azs£ À z À ° À èzÀÝ CªÀ¢A ü iÀÄ£ÀÄß F ²Q븮 À à lÖ CªÀ¢Aü iÀÄ°è ªÀeÁ - ªÀnÖUÉ (SET-OFF) CºÀð CAvÁ DzÉò¸À¯ÁVzÉ.
ªÀÄÈvÀ¼À ªÁgÀ¸ÀÄzÁgÀjUÉ «¢ü¹zÀ zÀAqÀz° À è gÉÆ.40,000/- UÀ¼À ¥ÀjºÁgÀ ºÀt ¥Àqz É ÀÄPÉƼÀî®Ä DzÉò¸À¯ÁVzÉ. -8-
NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 §¸ÀªgÀ Ád ªÀÄvÀÄÛ EAzÀPæ ÀĪÀiÁgÀ EªÀjUÉ «¢ü¹zÀ zÀAqÀz° À è vÀ¯ À Á gÉÆ.10,000/-gÀAvÉ ¥ÀjºÁgÀ ºÀt ¥Àqz É ÀÄPÉƼÀî®Ä DzÉò¸À¯ÁVzÉ.
10. It is this judgment of conviction and sentence that has been challenged by the accused by preferring this appeal on the following grounds:
That the judgment of conviction and sentence passed by the court is against the records and settled principles of law. It has resulted in miscarriage of justice. The learned trial court has committed serious error in convicting the accused without appreciating the evidence of defence witnesses DWs.1 to 3. From the evidence of DWs.1 to 3, it is very much clear that accused indeed was suffering from bipolar disorder and he has taken treatment. There was no mens-rea or intention on the part of the accused to commit such an offence. The witnesses of prosecution though support the case of the prosecution, but, they are not the eye witnesses who have witnessed the said incident. There is no credible information stated being reason for death of girl.
11. Accused was treated for his mental illness. Evidence of DWs 1 to 3 supports the same. PW. 1 has stated that -9- NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 accused might have committed the act due to his illness. Evidence of PWs 3, 5, and 9 would reveal that accused never tried to escape from the said place.
12. PW.11 is fellow teacher along with the accused and stated that accused was a good teacher. He has no history of any sort of having troubled the students. DW.2 has categorically stated about the disease being suffered by the accused. There is no proper evidence. Therefore, the self- defence as narrated in Sec.84 of IPC are aptly applicable to the conduct of the accused and he comes under the purview of `exception' stated in the said provisions of IPC. The learned Sessions Judge has failed to appreciate the same and simply convicted the accused without looking into the records and also appreciating the evidence of both oral and documentary. Amongst other grounds, it is prayed by the accused to acquit him of all the charges levelled against him by giving benefit of doubt.
13. After filing this appeal, the same is admitted. Records of the trial Court are secured.
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14. We have heard the arguments of learned counsel for accused/appellant Sri Sachin Mahajan and learned Addl.Public Prosecutor Sri Prakash Yeli and meticulously perused the record.
15. Before discussing the other aspects of the case, let us examine that whether deceased Gagana has suffered homicidal death because of drowning. To this effect, the prosecution relies upon the evidence of the complainant and other eye witnesses so also doctor PW.20 Sharanappa who conducted the post mortem on the deceased. Prosecution also relies upon inquest Panchanama Ex.P1, post mortem report as per Ex.P11. These documents are not denied by the defence. The evidence of the inquest panchas and evidence of the other witnesses coupled with the evidence of the doctor prove that because of drowning said Kum.Gagana died. When there is no denial of this fact by the defence, it is proved that prosecution is able to prove the homicidal death of deceased.
16. However, we have the evidence of PW.1 Gopala Reddy, PW.2 Mallappa being inquest panchas and PW.20 doctor. If the evidence of these witnesses is scrupulously
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 perused, no cross-examination is directed to PWs. 1 and 2 and so also to PW.20. Thus, the defence admits the contents of Panchanama, Post Mortem report Ex.P11.
17. Though it is proved by the prosecution that deceased suffered homicidal death because of drowning, the burden is on the prosecution to prove that it is because of the act of the accused, deceased suffered the death in his hands and the two other children Indrakumar and Basavaraj were the victims in the hands of the accused of whom there was an attempt to cause murder by throwing them in the said well.
18. PW.3 Muniswamy Ramanna is the complainant in this case. He corroborates the complaint and the material particulars and he says he lodged the complaint Ex.P2. He further says that, on 20.11.2010, when he was returning from work, he saw accused pushing Gagana and Indurakumar and Basavaraj. He further states that accused also jumped in the well. He tried to drown Basavaraj. Some of the students by name Amaresh called the complainant. Accordingly, he went near the well and noticed drowning of students by the accused. Immediately he asked why accused is doing the said act. At
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 that time, he said that he wants to save the students. This complainant being the eye witnesses rescued Basavaraj whereas, Indrakumar came outside the well by swimming for himself. He says that Kum.Gagana completely drowned.
19. Though this PW.3 has been cross-examined at length but nothing worth is elicited from his mouth. It is stated by him that accused might have committed this offence because of mental illness. Taking advantage of this evidence, it submitted that because of mental illness, the accused might have caused said Act. Therefore, he comes under the purview of Sec.84 of IPC. It is elicited that this PW.3 has not noticed any change on the face of the accused when he tried to push the head of the child. It is further stated by him that accused was not mentally ill when he committed the offence. Thus, PW.3 categorically denied about the mental illness of accused at the time of the incident.
20. PW.8 Basavaraju, is another victim in the hands of the accused and according to his evidence, when the incident took place he was studying in fourth standard. He says that accused was his teacher. He knows Indrakumar and Gagana.
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 Gagana is no more. According to his evidence on the day of incident, school closed at 1.30 p.m. as it was Saturday, accused took them to cross the road. Accordingly, they crossed the road with his help. When they were so moving near the well, accused took Kum.Gagana forcibly and threw her inside the well. He also took him (Basavaraj) and pushed in the well so also Indrakumar. It is further stated that he also jumped in the well. Pushed the heads of these children inside the water. PW.4 states that Muniswamy and Ramanna rescued them. Gagana died due to drowning.
21. He being a boy of 10 years, has been directed a question by the defence that if he tells lie what happens?. He says that if he tells lie, God will punish him. It is further stated that teachers advise them not to tell lies. It is further admitted by him that accused was always silent and he was teaching them. Though this PW.4 has stated about picking him by the accused and throwing into the well, but, there is no cross- examination directed to this PW.4.
22. PW.5 Indrakumar is another boy of 11 years, being examined in this case and was victim in the hands of the
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 accused. He too corroborates the evidence of PW.4 in material particulars. He denied all the suggestions. Though PWs.4 and 5 are cross-examined at length by the defence, but, nothing worth is elicited so as to disbelieve their version given in the examination-in-chief.
23. PW.6 Hampamma is the mother of deceased and she came to the said place only after the incident and came to know that her daughter was thrown inside the well by the accused. Likewise, PW.7 Mallamma is the grandmother of deceased and she too corroborates the evidence of PW.6 in material particulars. So the evidence of this PWs.6 and 7 can be accepted to the extent that they have sent Gagana to school on that day but, unfortunately she did not return home because of this distressing incident.
24. PW.8 Chandrashekhar husband of PW.6 and father of deceased girl Gagana corroborates the evidence of PW.6 and 7 in material particulars. PW.9 Prabhu Takkalaki was Headmaster of the said school and PW.10 Hanumanth was a teacher. So also PW.11 Nagesha was an Assistant Teacher. These three witnesses have consistently spoken in their
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 respective evidence that they came to know of throwing of three children by accused into the said well. They speak of rescuing Basavaraj and Indrakaumar and the death of Gagana. With regard to the conduct and behaviour of accused, they have consistently deposed that accused was of good character when he was teaching in the school and he had no bad antecedents. He never acted as an insane person during teaching.
25. These three witnesses are not the eye witnesses but, have spoken about conduct and behaviour of accused being colleagues in the school. They are the best persons about conduct and behaviour of the accused as they worked together in close proximity i.e., in Siddaroodha School. They never say before the court that accused had any insane qualities. The evidence of these witnesses can be accepted to the extent that accused's conduct and behaviour was very good in the school.
26. PW.12 Amaresh was a student in the said school and when he was examined, he was 18 years old. He was eye witness to the said incident. He corroborates the evidence of PWs.3 to 5 in material particulars and in fact, he is the witness
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 who cried and screamed when he saw the incident of throwing three children by this accused person. Though this PW.12 is directed with severe cross- examination, but nothing worth is elicited in the cross-examination. PW.13 Anjaneya is the spot pancha to Ex.P3. He speaks about the contents of the Panchanama. Except denial, nothing is elicited from the mouth of this witness. Thus, from the evidence of PW.13 coupled with the evidence of Investigating Officer, the contents of Ex.P3 are duly proved in accordance with law. P.W.14 Shekshawali and PW.15 Sharanappa but, have turned hostile. His evidence will not come to the help of prosecution. They are the panchas to Ex.P4 but, in view of their hostility, their evidence will not help the prosecution.
27. PW.16 Ramanna, was an agriculturist and branded as an eye witness and turned hostile. His evidence will not help prosecution. PW.17 Nagaraj is pancha to Ex.P3 and there is no denial Ex.P3. Therefore, evidence of PW.17 has to be accepted to the extent that he was present when pachanama was conducted as per Ex.P3. PW.18 Hanumantha, BEO of Raichur, who issued Ex.P6 being registration certificate of School. Existence of said school is not denied Hence .Exp 6 are proved
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 through this witness. PW.19 Sharanappa PDO who issued Ex.P7 certificate to show that in which property the school is in existence. There is no denial of this fact by the defence. Thus contents of Ex.P7 are admitted by PW.19.
28. PW20 Dr.Sharnappa conducted P.M and opined that because of drowning Gagana died. There is no cross examination to PW.20 by the defence. Thus, the contents of Ex.P.11 are proved by the prosecution. PW.21 and PW22, are the IOs. They have spoken with regard to the conducting of investigation and through their witnesses it is proved that criminal law was set in motion based on complaint, investigation was done as there was evidence being collected to prove the guilt of the accused. To that extent, we believe this evidence.
29. So far as defence evidence is concerned DW.1 Dr. Anil Gumaste, DW.2 Dr.Suresh Badamath and Dw.3 Dr.Zulfilkar Rajesh Tahsildar are examined by the defence to prove his mental disorder. Accordingly, to their evidence, after medically examining accused they are of the opinion that he was having disturbance in his thoughts and accordingly Ex.D1 and D2 are
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 issued by DW.1. This DW.1 says that, he was having Schizophrenia being the disease suffered by the accused. DW.2 did not find any signs and symptoms of mental illness when he medically examined accused. He was brought to mental hospital Bengaluru from Dharwad. He has issued Ex.D3. DW.3 says that, accused was suffering from Bipolar Affective Disorder and he had current episode of depression. When he enquired he stated that, he threw the children into the well. He was in sad mood and he was under frustration. These DWs.1 to 3 have been intensively cross examined by the public prosecutor. From the evidence of DW.1 to 3, defence tried to bring on record that accused was suffering from insanity i.e. mental illness and at the time of incident, he was suffering from the said disease. Therefore, the accused has taken the defence under 84 of IPC and it is prayed that benefit of doubt has to be given to the accused.
30. As stated supra, there is consistent evidence of PW.3 to 5 and 12 about the act of the accused in throwing the three children in the well. They are the eye witnesses to the said incident. Their evidence is not contradicted by the defence in proper manner.
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31. When it is the defence of accused that, he was suffering from insanity and claims benefit under Section 84 of IPC, as the law mandates that burden is on the accused to prove his insanity at the time of incident. Once he proves the same, then the onus shifts on the prosecution to disprove the same.
32. The counsel for the accused with all force submits that, when the incident took place accused was of unsound mind and he was suffering from mental illness. Therefore, though the evidence is placed on record with regard to his insanity during the course of trial, but the learned Sessions Judge has not taken into consideration the defence evidence and hastily found the accused guilty of the commission of the offence which has resulted in miscarriage of justice. He submits that Section 85 of the IPC comes to the rescue of accused and the plea of insanity is to be accepted and accused is to be acquitted by giving benefit of doubt.
33. Repelling the submission, the learned Special Public Prosecutor submits that in view of the evidence so placed on record by the prosecution, it is proved that accused has
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 committed the said offences. There is no past and present history of the accused regarding insanity. Subsequent to his arrest only, the accused has come up with such a defence, therefore the learned Trial Court has rightly disbelieved such a defence. Hence, he prays to reject the said submission of counsel for accused.
34. In view of this specific defence of insanity of the accused, now we have to understand that whether such a defence in the present facts and circumstances can be accepted or otherwise.
35. So far as insanity is concerned under the Medical jurisprudence "it is a disorder of the system by which sound and healthy exercise of the mental faculties is impeded or disturbed1. The word 'sane' has its roots in the Latin word 'sanus' which means healthy (thus, insane means not healthy, i.e., an unhealthy mind). Insanity is therefore a term used to describe varying degrees of mental disorder.
36. The defence of insanity in criminal law has been present since ancient times with tests like wild beast tests 1 A treatise on Insanity - James Cowles Prichard : Philadelphia (1837)
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 (developed by the English Courts in the case of R v. Arnold2), insane delusion test (developed in Hadfields case3) and the like. But a definte shape in this direction took place with a famous case of M'Naghten wherein some propositions were laid down which were called 'the M'Naghten Rules. The important once were -
i) Every man is presumed to be sane until the contrary is proved.
ii) In order to defence of insanity to succeed it must be proved that the accused was under a delusion so as not to know the nature of the act he did and if he knew the act then he did not know the act to be wrong.
iii) A medical witness who has seen the accused before trial should not be asked on evidence whether he thought the accused to be insane.
37. The Indian Law on the defence of insanity in embodied in Section 84 of IPC (hereinafter referred to as IPC). It is broadly based on the M'Naghten Rules. In criminal law a crime is an act of commission or omission for which the state provides for punishment. One of the important ingredients of 2 (1724) 16 ST.TR.695 3 (1800) 27 ST.TR.128
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 crime is 'Mens rea' (i.e. guilty mind). Thus, the famous maxim in criminal law is - Actus reus non facit reum nisi mens sit rea, i.e., an act is not guilty unless done with a guilty mind. An insane person is not capable of having the requisite mens rea to commit an offence and so law allow insane people to take the benefit of defence of insanity. It is said that a mad man is best punished by his own madness - "furious furor suo punier". It is further said that a mad man has not will - furious nulla volunteers est. He is therefore, in all ages an object of consideration.
38. In Section 84 of IPC the term used is 'unsoundness of mind', and not 'insanity' because the scope of the word 'unsoundness of mind', is broader than the word 'insanity'. Any kind of mental derangement is unsoundness of mind, but the same may not be insanity always. However, the term 'unsoundness of mind' is not defined in the IPC. But, it is equivalent to the old legal term 'non compos mentis', and includes the following category of persons - an idiot, one made non compose by illness, a lunatic or a mad man and one who is drunk.
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 Section 84 of IPC reads as under :-
"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."
39. Thus, the essential ingredients of Section 84 of IPC are -
The accused must be of unsoundness of mind at the time of commission of the offence.
The crucial point of time at which unsoundness of mind must be exists is at the time of commission of the offence. This is a question of fact and has to be decided by the Court from case to case basis.
In Sheralli Wali Mohd. Vs. State of Maharastra4 the Apex Court held that 'to establish that acts done are not offences under Section 84 of IPC it must be proved clearly, that at the time of commission of the act the accused was incapable of knowing the nature of the act because of unsoundness of 4 (1973) 4 SCC 79
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 mind. In Ratan Lal v. State of Madhyapradesh5. the Apex Court has held that 'whether or not the accused is entitled to the benefit of Section 84 of IPC can only be established from the circumstances which preceded, attended and followed the crime.
b) The accused must not be capable of knowing the nature of the act or that what he was doing was wrong or contrary to law.
40. To get the benefit of Section 84 of IPC the cognitive faculties of the mind must be so impaired that the accused becomes incapable of knowing the nature of the act or that it was wrong or contrary to law.
In Queen Empress v. K.N.Shah6, the accused was suffering from mental derangement for sometime. A person put his son in the company of the accused and on returning he found the accused hiding in the jungle and his son was killed by the accused. The court held that the circumstances attending the murder showed that he was not deprived of the reasoning 5 AIR 1971 SC 778 6 (1896) IA 23 CAL. 604
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 power to distinguish between the right and wrong (for example : He hid himself in the jungle) Similarly, it is held in the case of Lakshmi v. State7 that the accused a drug addict was convicted for the murder of his step brother. He assaulted his step brother with a pharsa and then fled the spot. The court held him guilty and not entitled to the benefit under Section 84 of the IPC and he knew the nature of his act as evident from his fleeing the spot to evade arrest.
JUDICIAL INTERPRETATION OF SECTION 84 OF IPC
a) Legal and medical insanity :
From the various case laws from the Hon'ble Apex Court and various High Courts, it is evident that the courts have treated the expression 'unsoundness of mind,' as equivalent to insanity. In Bapu @ Gajarasing v. State of Rajasthan8, the Hon'ble Supreme Court held that the term insanity is used to describe various degrees of mental disorder. So, every person who is mentally diseased is not ipso facto exempted from criminal liability. A distinction has therefore to be made between legal and medical insanity and what the law is 7 AIR 1959 Allahabad 534 8 (2007) 8 SCC 66
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 concerned with is legal and not medical insanity. If there exists sufficient medical grounds to hold that a person is suffering from insanity, it is a case of medical sanity. But, for the purpose of Section 84 of IPC what the defence must prove is that, at the time of commission of crime the cognitive faculties of the persons was impaired which made him incapable of knowing the nature of the act.
In Surendra Mishra v. State of Jharkhand9 the Apex Court held that the mere fact that the accused is conceited, odd, irascible, had fits of insanity at short intervals are not sufficient to attract the application of Section 84 of IPC.
b) Burden of proof :-
The burden of proof in case of insanity lies on the accused. In the case of Surendra Mishra stated supra, it was held that though the burden of proof is on the accused he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities . The accused has only to satisfy the preponderance of probabilities after 9 (2011) 11 SCC 495
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 which the onus shifts on the prosecution to establish the inapplicability of the exception.
c) Intoxication and insanity :-
Involuntary intoxication affects the same degree of protection under Section 85 of the IPC as is given under Section 84 of IPC for insanity. Voluntary drunkenness is an excuse only as regards to 'intention'. So that it is a complete excuse in crimes requiring the presence of intention to complete the crime.
d) Irresistible impulse and insanity : -
Irresistible impulse is a state of mind where a person loses control not of the awareness of what is he doing but of the will to stop himself from doing it. It affects person's control over his emotions. There are some difficulties in accepting irresistible impulse defence because if accepted it would take away all incentives towards self control and it is also very difficulty to say which impulse is irresistible and which is not. The doctrine of irresistible impulse and impulse insanity is not a valid defence under Section 84 of IPC.
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 Thus, modern criminal law is based on the belief that humans are morally responsible and not harm causing agents. To be held criminally responsible, the two essential i.e., actus reus and mens rea are essential. The crucial point of time for determining the state of mind of the accused is the time when the offence was committed. The person suffering from mental illness is one of the fact for this Section 84 of IPC. The other factors are motive for the crime, the previous history as to mental condition of the accused, the state of his mind at the time of the offence, and the events immediately after the incident that throw a light on the state of his mind. The totality of the circumstances have to be taken into consideration. In Bapu @ Gajarasing's case stated supra and Sheralli Wali Mohd.'s case stated supra, it is held by the Hon'ble Apex Court that 'mere absence of motive for a crime and how so ever atrocious the crime may be, in the absence of plea and proof of legal insanity, cannot bring the case within the ambit of Section 84 of IPC. The Hon'ble Supreme Court have clearly stated that the mere abnormality of mind of partial delusion, irresistible impulse or compulsive behavior of a psychopath affords no protection under Section 84 of IPC.
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 Therefore, law says that the onus of proving unsoundness of mind is on the accused, hence the plea of insanity should be taken by the accused or by his lawyer or his family members or previous history of insanity so also it is the duty of an honest, Investigating Officer to subject the accused to a medical examination and to place that evidence before the court. This plea of insanity should be taken during the investigation or during the trial in the trial court and not during the appeal to the higher courts.
(Harisingh Gond v. State of Madhya Pradesh10).
41. In view of the above discussion now we have to consider that whether the evidence so placed on record by the prosecution probablises that the accused had done the offence under the effect of the unsoundness of mind. Therefore, the said probability has to be examined by the Court in detail. The lecture No.VII on conditions of Non imputabliity in the commentary on Law of Crimes by Shamsul Huda at page 279 lays down as under :-
i) "Therefore on strict principle and looking upon insanity as a mere source of intellectual error and 10 (2008) 16 SCC 109
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 intellectual compulsion, insanity, whether temporary or permanent, complete or partial, is excusable -
(a) It over powers the will and the suffer ceases to be a free agent or, in other words, if it gives rise to what is known as irresistible impulse.
(b) It deprives the suffer of the knowledge that the act is either morally wrong or contrary to law.
This want of knowledge of the right and wrong of an act or of its being illegal may again be due to various causes; it may for instance be due to -
(a) Mental disorder leading to error regarding external objects.
(b) Affection of the cognitive faculties; and loss of memory depriving the suffer wholly or partially, generally or; with reference to a particular matter of the knowledge gained by past experience of the connection between different events." On Page 297 it is further stated as under :-
"The law regarding irresistible impulse may be stated thus;
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(a) The existence of such an impulse is not to be presumed from the mere absence of a motive for a criminal act.
(d) Where, however, the existence of a diseased mind is proved by other evidence, such evidence along with the evidence furnished by the act itself may suffice to prove the existence of a irresistible impulse, and when proved, is according to more recent decisions in England and America a good ground for exemptions, even though there may be sufficient understanding that the act is wrong or illegal.
(e) Where, however, the existence of such understanding is not negatived, the mere irresistible impulse does not seems to be a ground of exemption in India."
42. Here in this case DWs.1 to 3 are examined by the defence. DW.1 - Dr.Anil Gumaste state in his evidence that when he enquired the accused at the time of his medical examination, accused told him that he was teaching swimming to the children. Further he told him that he wants to control the media. Thus, he found that accused was having disturbance in his thoughts. According to him he used the word 'schizophrenia'. He further admits that by seeing the accused in
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 the hospital for the first time, he cannot say whether accused was lunatic or not.
43. DW.2 - Dr.Suresh Badamath was the additional Professor, Department of Psychiatrist, Bengaluru. He states in his evidence that he did not find any signs and symptoms of mental illness when he examined the accused. He came to know from the Doctors of Mental Hospital, Dharwad that the accused was suffering from bipolar disorder.
44. This DW.2 has been cross-examined by the defence. It is elicited that when accused came to his hospital, he was absolutely alright both physicaly and mentally.
45. DW.3 -Dr.Zulfikar Rajesab Tahasildar being the Medical Officer of Dharwad, who medically examined accused states that he diagnosed that accused was suffering from bipolar affective disorder. When he was brought to him accused was in depression, dull, confusing, guilt and he told him that -
''£Á£ÀÄ ªÀÄPÀ̼£ À ÀÄß ¨Á«AiÀÄ°è ºÁQzÉ. £À£U À É ¸ÀªÀiÁzsÁ£À E®è ¨ÉÃeÁgÀ EgÀÄvÀz Û .É ''
46. Thus from the evidence of DWs.1 to 3, it is proved that accused was suffering from bipolar disorder. On going
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 through the medical jurisprudence this bipolar disorder, was formally called manic depression, is a mental health condition that causes extreme mood swings that include emotional highs (mania or hypomania) and lows (depression).
47. It is quite natural that when a person become depressed, he may feel sad or hopeless and loose interest or pleasure in most activities. When mood shifts to mania, one may feel euphoric, full of energy or unusually irritable. So as per the medical opinion these mood swings can affect sleep, energy, activity, judgment, behaviour and the ability to think clearly. Episodes of mood swings may occur rarely or multiple times in a year. While most people will experience some emotional symptoms between episodes, some may not experience any.
48. The Doctors have given their evidence based upon the documents being prepared at the time of the medical examination of the accused. Ex.D1 is dated 21.11.2010, the out-patient card it shows that accused was advised to be transferred to higher center. Ex.D2 is issued by Resident Medical Officer regarding referring accused to KIMH, Dharwad
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 or NIMHANS, Bengaluru. Ex.D3 is the outpatient card issued by NIMHANS.
49. The learned counsel for accused relying upon these documents submit that accused is under follow up treatment and his defence under Section 84 of IPC can be accepted in view of the evidence of DWs.1 to 3.
50. In view of our discussion made above, first of all the burden which was on the accused as contemplated under Section 105 of the Evidence Act is not complied by the accused. So to say the illustration to Section 105 of the Evidence Act applies to the facts of this case. This Court in Parminder Singh vs. State by HAL Police, Bengaluru11 have held the benefit of general exception available in the Indian Penal Code, the accused has to show existence of circumstances. If such circumstances are available on record naturally, the accused is entitled for general exceptions. It has to be considered from the testimony of the prosecution witnesses and also by perusing the entire case papers."
11
2007 (3) Kar. L.J. 7 Karnataka (DB)
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51. Thus, in order to claim the benefit under Section 84 of IPC, the defense has to show that at the time of occurrence of incident, the accused was of unsound mind. In this case, there is no past history of accused suffering from mental illness. No document is produced to that effect. His own Headmaster and colleague-Teacher have stated that accused was not at all suffering any mental illness. He was of good behavior having good conduct. Only after commission of the crime i.e., at the subsequent stage, that the accused was given treatment for his mental ailment, it would not be sufficient to attribute accused as an insane person as laid down under Section 84 of the IPC. Since the accused did not adduce evidence to show that he was suffering from the insanity at the time of incident, the plea of insanity has to be rejected. In a similar circumstance, the Bombay High Court has held in Madhukar G.Nigade vs. State of Mahastra12 that "since the accused did not adduce evidence to show that he was suffering from insanity at the time of the incident, the plea of insanity was rejected, the conviction of the accused under Section 302 of IPC was sustained.
12
2006 Crl.L.J 1305 (1306 - Bombay Division Bench)
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52. The learned counsel for the accused relies upon following judgments -.
i. AIR 1964 Supreme Court 1563 - Dahyabhai Chhaganbahai Thakkar v. State of Gujarat; ii. AIR 2002 Supreme Court 3399 - Shrikant Anandrao Bhosale vs. State of Maharashtra;
iii. AIR 2011 Supreme Court 627 - Surendra Mishra v.
State of Jharkhand;
iv. AIR 2012 Supreme Court 1 - State of Rajasthan v.
Shera Ram alias Vishnu Dutta;
v. AIR 2018 Supreme Court 3093 - Devidas Loka Rathod V. State of Maharashtra;
vi. AIR 2009 Supreme Court 31 - Hari Singh Gond v.
State of M.P. and vii. D.B.Criminal Appeal No.6/2020 - Rajasthan High Court (Mohan Lal S/o Okha Ram v. State, through P.P) All these judgments relied upon by the counsel for the accused speaks of fundamental principles of criminal jurisprudence that the accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused in the first judgment, it is observed by the Apex Court
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 relying upon the Halsbury's Laws of England, 3rd Edition, Vol-X at page 288 that -
"The onus of establishing insanity is on the accused. The burden of proof upon him is no higher than which rests upon a party to civil proceedings."
53. All these judgments laid down the principle that plea of unsoundness of mind has to be proved in accordance with law. There is no evidence placed on record by the accused that there was no mens rea and hence the essential element of crime is not completed. A bald defence has been set-up without any proof. That means, during course of trial accused was subjected to medical examination for assessing his mental condition. DWs.2 and 3 Doctor have opined that he was suffering from bipolar disease for which he is taking treatment. Thus, at the time of commission of the crime whether really being a Teacher working in a private school he was suffering from mental illness is not proved by the defence. In the absence of such evidence, it is hard to believe the story or the defence set-up by the accused that he can take defence under Section 84 of IPC.
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54. As discussed, it has come in the evidence that accused was a Teacher working in a private school. His own colleagues i.e., Headmaster, Co-teachers in their respective evidence have specifically sated about the conduct and behavior of the accused in the school. His own students who were the victims in his hands i.e., Indrakumar and Basavaraj have stated about the same. There is no past history of any bout insanity of the accused during his service as a Teacher. As usual he was helping his students to cross the road on the ill-fated day and when he was so helping the students first lifted Kum.Gagana and threw her in a well. Thereafter, he took other two boys Indrakumar and Basavaraj, threw them in the same well. Thereafter, he jumped in the well. He was found pushing the head of Kum.Gagana in the water. One school boy Basavaraj Chagi started screaming. Two persons noticed this event and they jumped into the well. They too noticed pushing head of Kum.Gagana in the water by accused and also another boy. They rescued two boys but could not rescue Kum.Gagana. When they asked accused he told that he wanted to teach swimming to the students. So this conduct of accused shows that, he knew what he was doing. Thus, it cannot be stated
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 that accused at the time of commission of act was incapable of knowing the nature of the act because of his unsoundness of mind. When these victims where with the accused the attending act of the accused in causing the murder of Kum.Gagana and throwing the two boys in the well showed that he was not deprived of any reasoning power to distinguish between right and wrong. He killed Kum.Gagana by drowning her in the well. The legal insanity so set up by the accused cannot be accepted.
55. If all these factual features coupled with the oral and documentary evidence are read together, it can be stated that the accused has failed to prove his private defence as defined under Section 84 of IPC and none of the appeal grounds so made out in the appeal memo are satisfied by him with acceptable legal evidence. Therefore, the appeal filed by the appellant fails and is liable to be dismissed.
56. So far as sentence is concerned, the learned trial court has imposed life imprisonment for the offence committed under Section 302 of IPC and fine of `50,000/- with default sentence and imposed ten years imprisonment for the offence
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 under Section 307 of IPC with a fine of `25,000/- with default sentence. Evidently, this case is not coming under the `rarest of rare' cases, the accused has committed the said offence as per his defence under the influence of insanity. Though it is not proved, in view of the background of the accused and status of the accused as a teacher, we do not find any legal error or factual error in imposing the said sentence as the sentence so imposed is proportionate to the crime committed by the accused.
57. Resultantly, we pass the following :
ORDER The appeal filed by the appellant/accused under Section 374(2) of Cr.P.C is dismissed.
The judgment of conviction and sentence passed in S.C.No.102/2011 dated 23.09.2016 by the Additional Sessions Judge, Raichur is hereby is confirmed.
The orders regarding disposal of MOs 1 to 6 is maintained.
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NC: 2023:KHC-K:4907-DB CRL.A No. 200185 of 2016 Send a copy of this Judgment to the trial Court as well as to the Chief Superintendent of Jail, Raichur.
Supply a copy of the judgment to the accused free-of- cost.
Sd/-
JUDGE Sd/-
JUDGE SN,SK