Orissa High Court
Uchhab Sahoo vs The State on 13 May, 1988
Equivalent citations: 1989CRILJ168
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT L. Rath, J.
1. The appellant is in appeal against his conviction under Section 302, I.P.C. and sentence to undergo R. I. for life for having killed his father (hereinafter referred to as the deceased) at about 6.00 p.m. on 25-11-1981. The appellant was living separately with his wife and children for about ten years from his father and on the day of occurrence, as is the prosecution story, the deceased went to the house of the appellant while he was quarrelling with his second wife and protested against the abuses of the appellant to his wife. At this, the appellant pushed the deceased outside the house and threatened that if he would come to his house, he would kill him by arrow-shot and so saying brought out an arrow and bow and shot an arrow which pierced the left side chest of the deceased who fell down. He was removed to the Rajsunakhala Hospital where he was administered an injection but he succumbed to the injury, the death having occurred within half an hour of the shooting of the arrow. The A.S.I. of Rajsunakhala Out-post got information about the death from P.W. 1 who gave a written report (Ext. 7) and since the report revealed a case under Section 302, I.P.C., he made a station diary entry to that effect and sent the report to the Ranpur Police Station for registration of a case and took up preliminary investigation, held inquest over the dead body and sent the dead body for post-mortem examination. On the same day at about 10 P.M. the Officer-in-charge of Ranpur Police Station (P.W. 9) reached the village and took up investigation. After completion of investigation, chargesheet was submitted against the appellant who stood his trial.
2. The appellant's plea during the trial was of insanity at the time of commission of the offence.
3. The post-mortem examination revealed, as has been stated by P.W. 4, the doctor conducting the said examination, that externally the deceased had lacerated injury over the left chest anterior over the 7th intercostal space transversely of 4 X 1/2 X 10 c.m. size. The arrow was stuck into the body and its metal end punctured the thorax which was removed from the chest of the deceased during post-mortem examination. The external injury corresponded to the fracture of the 7th rib of the chest at a distance of 5 c.m. from sternal margin, and among other things, the left lower lobe of the lung was lacerated along with pleura 10 c.m, X 5 c.m. X 5 c.m. The left ventricle and the pericardium was incised by metal part of the arrow with blood clot in the injured tract. The cause of death was assigned as shock resulting in cardio respiratory failure for having severe haemorrhage and damage to the vital organs. There is thus conclusive evidence that the death was homicidal.
4. Since the appellant has raised plea of insanity while admitting the commission of the act, it is to be seen how far he has been successful in establishing such plea. In a. criminal prosecution it is well settled that the burden on the prosecution in establishing the commission of the crime by the accused never shifts and it is to be proved beyond reasonable doubt that it is the accused who is the author of the offence. But if the accused wants the protection of any of the exceptions from criminal prosecution, the onus is upon him to establish the facts constituting the exception, since as is required under Section 105 of the Evidence Act, such facts being within his special knowledge, can only be established by him. The onus so cast upon the accused however is not of the same rigorous standard as is required of the prosecution, hut consists of furnishing a reasonable explanation for his conduct so as to raise a doubt that his explanation might be true. In other words, if the accused is able to show, either from prosecution evidence itself or even by independent evidence, that the offence might have occurred in the manner or under circumstances as pleaded by him, he will be entitled to the benefit of the exception.
5. So far as the plea of insanity under Section 84, I.P.C. is concerned, the legal position relating to the same is now well established. It is not that a mere plea of insanity will keep the accused beyond the pale of punishment. Even establishment of fact of medical insanity would not aid the accused to earn an acquittal unless legal insanity is also proved which means that it is to be shown that he was not in possession of his cognitive faculties at the time of commission of the crime. It is only when the case is that the accused was at the relevant time not in conscious control of mental faculties which had deprived him of his power of judgment between the right and the wrong to discriminate between the legal and illegal by reason of insanity, that he could properly avail of the exception. In establishing such plea, history of previous insanity including any medical history of the same, the behaviour of the accused on the day of the occurrence and his post-occurrence behaviour are, besides other factors, also relevant to be taken into consideration as aids to judge the mental state of the accused at the time of commission of the crime.
6. From such background, it is to be seen how far the appellant has been successful in establishing the plea. Mr. N. K. Acharya, learned Counsel appearing for the appellant has taken us through the evidence adduced by the prosecution as well as the defence. P.Ws. 1, 2 and 3 are the brothers of the appellant through whom the prosecution case is sought to be established. It appears from the evidence of P.W. 1 that 4 to 5 years prior to the occurrence, the appellant had once gone mad and had been admitted to the Cuttack Hospital for treatment where he remained for about fifteen days. During his treatment in the hospital, the appellant was talking filthy language to the villagers and while sitting alone was talking to himself, and for some petty quarrel was also threatening to assault. It is also his statement that about ten years back he, his father and younger brother separated from the appellant since he was at times going mad and that he was going mad from time to time since about five years back prior to his treatment at Cuttack and also after his treatment at Cuttack he was going mad and at times. He had heard people were telling that the 'PAGALA' had caused the death. It is his further statement that after commission of the crime, the appellant did not go away anywhere but remained inside the house. The evidence of P. W. 2 is also to the same effect that four to five years back the appellant had gone mad and had been to Cuttack hospital and that six years back he had gone mad for sometime but had been cured. P.W. 3 while admitting that he and P.W. 1 were not pulling on well with the appellant on the day of occurrence, stated that the appellant had gone mad since four to five years back. Coupled with this evidence is the evidence led by the defence through D.Ws. 1, 2 and 3. D.W. 1 is a private medical practitioner who testifies that the appellant had once been to his clinic about two years back being brought by two persons and that since the appellant was violent, both the persons had caught hold of his hands. He collected symptom of the disease of the appellant from the persons accompanying him and as the appellant had refused to take injection, he had advised the accompanying persons to put some tablets in his mouth. He suspected from the abnormal behaviour of the appellant who was also talking irrelevant things it to be a case of pychiatric disease and advised him to be taken to the S.C.B. Medical College Hospital, Cuttack for mental treatment. D.W. 2 is the Professor of Psychiatry in the S.C.B. Medical College who deposed that in the year 1978 when he was Associate Professor and Additional Superintendent of Mental Health Institute, the appellant was brought to him by his uncle. On examination he had found the appellant showing gross psychromoter excitement which means he was unreasonably thinking that people were against him and his insight was absent means that he was not able to realise his own condition. He had been admitted in the hospital and had been administered six electrical shocks. At the time of discharge, he had been advised to take medicines at home and to report again for check up after one month but he never turned up. His expert opinion was that the acute schizophrenia may turn into chronic schizophrenia if not fully relieved by treatment and there were chances of the patient committing crime once suffering from schizophrenic illness though he stated that at the time of discharge, the appellant's disease was not chronic and that he had been discharged on relief of his disturbing symptoms. The witness was not in a position to say the condition of the appellant in 1981 since he had no further contact with him. D.W. 3 is another doctor with post-graduate degree posted as Assistant Surgeon at Nayagarh Hospital and Superintendent of Nayagarh Sub-Jail. He examined the appellant on 28-4-83 on requisition from jail on account of his abnormal behaviour and diagnosed it as a case of schizophrenia and had prescribed medicines. He was again informed on 1-8-83 by the Jail Pharmacist of recurrence of the abnormal behaviour due to stoppage of medicines for which he again examined him and prescribed some medicines. Again on 12-9-83 he was informed by the Jail Pharmacist that the appellant had developed same symptoms in aggravated form and was passing sleepless night and was behaving erratically for which he was treated by him.
7. From the above evidence it appears as an undisputed fact that prior to the occurrence the appellant had history of medical insanity and that even after treatment he was having relapse of insanity from time to time and if the opinion of the expert specialist (D.W. 2) is to be accepted, schizophrenic condition unless cured fully may turn to a chronic one which may in its turn develop criminal propensities in the patient.
8. From the evidence it also appears that subsequent to the commission of the crime, while in jail, the appellant had also shown of signs of mental disease in 1983 though there is no evidence as regards his condition immediately after the arrest. As regards the day of occurrence, the evidence relating to mental state of the appellant is that of D.W. 4. Besides stating that about six years prior to the date of occurrence the appellant had been going mad at intervals, he stated that on the day of occurrence the appellant's wife had requested him to take the appellant to Nayagarh since he was showing madness. He and another Bansi Sethi had taken him to one specialist, one Abhay doctor and while taking the appellant had put them in trouble and escaped from their hands and was chased to a distance to be caught hold of. The doctor at Nayagarh advised them to take the appellant to Cuttack for further treatment. They returned from Nayagarh at about 10.00 A.M. on the day of the occurrence and left the appellant in his house. At 4.00 P.M. on the same day he had seen the appellant abusing somebody in filthy language. The witness has further stated that the appellant when was going mad was assaulting his wife and was threatening to kill his own children. The evidence of this witness is practically unchallenged since nothing has been brought out in his cross-examination. There is no qualitative difference between the evidence led by defence from that of the prosecution and such evidence cannot be rejected merely on conjectures and surmises. It was held in (Dudh Nath Pandey v. State of U. P.) that the defence witnesses are entitled to equal treatment with those of the prosecution and that the Courts must overcome their traditional and instinctive disbelief of the defence witnesses and that if it is true that the defence witnesses often tell lies, it must be appreciated that the prosecution witnesses are no exceptions. Hence reliance being placed on the evidence of D.W. 4, there is evidence to the effect that on the day of occurrence itself, the appellant had been suffering from a relapse of his madness for which he had been taken to the doctor and before whom also he had exhibited abnormal behaviour.
9. Mr. N. C. Panigrahi, learned Additional Government Advocate, has raised a submission that the evidence of D.Ws. 3 and 4 should not be acted upon since if it was a fact that the appellant had been taken to Nayagarh for treatment by 'Abhay doctor' as deposed to by D.W. 4, then the fact should have been confronted to the said doctor when he was examined as D.W. 3 and that having not been done, the statement of D. W. 4 is not believable. The submission does not make an impression since there is no evidence that 'Abhay doctor' is D.W. 3. No question was put to the witness that except D.W. 3 there is no other doctor named 'Abhay doctor' at Nayagarh. The learned Additional Government Advocate also placed reliance in support of his contention on a decision reported in 1988 Cri LJ 387 (Cal) (Narayan Chandra Dey v. State) but however I do not feel the law to be in any way differently stated in that decision from what has been discussed above.
10. From an analysis of the evidence as discussed above, it would appear that not only prior to the occurrence as also sometimes after it but also on the day of occurrence the appellant had shown symptoms of insanity. Even if it has been very strenuously urged by the learned Additional Government Advocate that the appellant has not established his plea of insanity at the time of commission of the crime, yet the evidence on record is sufficient to lead us to a doubt that the appellant might have been under a spell of madness when he shot an arrow at his father and that his explanation that he committed such act being not in control of his discerning faculties due to insanity may possibly and probably be true. In that view of the matter, we would hold that the appellant is entitled to the benefit of Section 84, I.P.C., and would acquit him of the charge.
11. In the result, the appeal is allowed. The order of conviction and sentence passed under Section 302, I.P.C. against the appellant is set aside and he be set at liberty forthwith.
G.B. Patnaik, J.
12. I agree.