Orissa High Court
State Of Orissa vs Kalia @ Debabrata Maharana on 19 February, 2008
Equivalent citations: 2008CRILJ3107, 2008(I)OLR845
Author: L. Mohapatra
Bench: L. Mohapatra, B.K. Patel
JUDGMENT L. Mohapatra, J.
1. The Death Reference and Criminal Appeal arise out of the judgment and order dated 27.11.2007 passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 15 of 2007. The accused-appellant has been convicted for commission of offence under Section 302 of the Indian Penal Code (in short 'I.P.C.') for committing murder of three persons namely, Gayadhar Ojha, Sailendra Swain and Jagadananda Mallik and has been sentenced to death for committing the said offence. He has further been convicted for commission of offence under Section 307 I.P.C. for attempting to commit murder of Banamali Khatua and Dinakrushna Das. The appellant having been sentenced to death for commission of offence under Section 302 I.P.C., no separate sentence was awarded for his conviction under Section 307 of the said Code.
2. As it appears from the record, on 23.7.2006 at about 7.30 P.M. the Officer-in-charge of Ramachandrapur Police Station (P.W.14) received a telephonic message that one Gayadhar Ojha has been killed by the accused-appellant. Entering such information in the station diary, he immediately rushed to village Alati where the incident took place. At 8 P.M. the informant, Narayan Swain (P.W.4) reported orally about the incident. On the date of occurrence at 6.30 P.M. he was informed by his co-villager Gobardhan Maharana that the accused-appellant was assaulting his elder brother Sailendra Swain by one Kata dragging him to his house (house of the accused) and the informant immediately reached the house of the accused-appellant with Tima Ojha and learnt that the accused-appellant was running towards Belasundari with one Kata. Thereafter, the informant and the said Tima Ojha ran towards the house of Padmanav Swain at Belasundari and learnt that the accused-appellant had severely injured Jagadananda Mallik and Banu Khatua by kata, who have been shifted for treatment and after assaulting the aforesaid two injured, accused-appellant ran to his village. They, while proceeding to the village, got information that the appellant at 7.30 P.M. evening had killed Gayadhar Ojha near Niranjan Sahu's shop and also assaulted Dinakrushna Das near Sanatan Swain's shop. In the meanwhile, Gobardhan Maharana, who had initially informed the informant about the assault on his brother, brought a message that the brother of the informant has died. The said report was reduced to writing under Ext. 1 and investigation was taken up. On completion of investigation, charge sheet was submitted for commission of offences under Sections 302 and 307 I.P.C.
3. The prosecution examined as many as fourteen witnesses to bring home the charge and three witnesses were examined on behalf of the defence. The plea of the accused-appellant was complete denial of the prosecution allegations.
4. Out of fourteen witnesses examined by the prosecution, P.W. 1 is the informant, Narayan Swain, who had seen the appellant dragging the deceased Jagadananda Mallick and also saw Banu Khatua with injuries and heard from Banu Khatua about the assault by the accused-appellant on him and deceased Jagadananda Mallick. He has also witnessed the assault on the deceased Gayadhar Ojha. P.W. 2 is a witness to the assault on injured Dinakrushna Das (P.W. 3). P.W. 3 is the injured himself and P.W. 5 witnessed the assault on Dinakrushna Das and is a seizure witness. P.W. 6 Gobardhan Moharana had witnessed the accused appellant dragging Sailendra Swain to his house and P.W. 7 is a witness to the assault on the deceased Gayadhar Ojha. P.W. 9 is a witness to the assault on injured Banu Khatua. P.W. 10 is also a witness to the assault on injured Banu Khatua and deceased Jagadananda Mallick. P.W. 11 is the injured Banamali Khatua and P.W. 8 is the doctor, who conducted autopsy on the dead bodies of three deceased. P.Ws. 12 and 13 are two doctors, who examined both the injured persons.
5. On the basis of version of the eye-witnesses, medical evidence and the injured witnesses, the trial Court found the accused appellant guilty of the charges and convicted him thereunder.
6. Shri Goutam Mishra, the learned Counsel appearing for the accused-appellant fairly submitted that the evidence adduced on behalf of the prosecution with regard to assault on three deceased person and two injured persons does not suffer from any infirmity and prove the case of the prosecution that the appellant had committed the murder of aforesaid three persons and the appellant also attempted to commit murder of two injured persons. However, it was contended by Shri Mishra, the learned Counsel appearing for the accused-appellant that the evidence adduced before the trial Court also indicates that the appellant was insane prior to the occurrence and at the time of occurrence and, therefore the benefit under Section 84 I.P.C. should have been extended to him. The learned Counsel for the State submitted that none of the witnesses examined on behalf of prosecution speaks of any kind of insanity so far as the appellant is concerned, and, therefore such plea could not have been accepted by the trial Court. There being no dispute that the prosecution has been able to establish that the appellant committed the murder of three persons and also attempted to commit the murder of two other persons, there is no reason to interfere with the order of conviction and sentence.
7. The Court is only called upon to decide as to whether the appellant was suffering form any kind of insanity at the time of occurrence so as to get the benefit of Section 84 of I.P.C. In this connection, it will be worthwhile to refer to some of the decisions of the Apex Court as well as this Court. We would like to refer to decision of this Court in the case of Shama Tudu v. State reported in 61 (1966) C.L.J. 649 : 1986 (I) OLR 636. This Court in this case referred to earlier decisions of the Supreme Court as well as this Court apart from the Medical Jurisprudence by Modi. In the said reported case, the accused had been convicted for commission of offence under Section 302 I.P.C for committing the murder of his wife and son under painful circumstances, without any motive and for no rhyme or reason, by means of a sharp cutting weapon while he had temporarily gone to the house of his father-in-law with his wife and child for taking new maize.. At the trial stage, a plea of insanity was raised and it was contended that the acts of the appellant would come within the purview of Section 84 of the Code but this plea was negatived by the learned trial Judge. Such plea was again raised in appeal and the Court referred to the propositions laid down by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat and extended the benefit of Section 84 of the Act. In the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (supra) the following propositions are laid down by the Supreme Court while interpreting Section 84 of the Indian Penal Code:
i. 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 upon the prosecution from the beginning to the end of the trial.
ii. There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down in Section 84; the accused may rebut it by placing before the Court all the relevant evidence, oral, documentary and circumstantial, but the burden of proof upon him is no higher than that which rests upon a party in civil proceedings.
iii. Even if the accused is not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed 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 resting on the prosecution has not been discharged.
The same principles were reiterated and re-emphasized in subsequent decisions of the .Supreme Court. On analysis of all these decisions, this Court in the case of Shama Tudu v. State (supra) came to the following conclusion:
In the instant case, without any motive, the appellant, who had been suffering from insanity on some occasions prior to the occurrence, had killed his own wife and his only son. There had been no quarrels between the appellant on the one hand and his wife on the other. The appellant had been dealing blows by means of M.O. I on the ground and at the threshold. He had knocked down and twisted and killed two fowls whose dead bodies were lying on the spot. He had been muttering to himself and he was shouting out that he would kill, cut and eat. The appellant had made no attempt to conceal the commission of the offence. On the other hand, he had been sitting outside with a Lungi (M.O. III) smeared heavily with blood with the bloodstained Barsi and Katari (M.Os. I and II) lying near him. He saluted the people who came near him and he had been laughing and saluting. The appellant had also been uttering something to himself. The Investigating Officer had himself noticed signs of insanity for which he felt the necessity of medical examination of the appellant. The evidence of P. W. 10 would give a clear indication that at the time of examination, the appellant was in a state of delusion and hallucination and he was incapable of feeling anything. No steps had been taken thereafter for further observation and medical treatment. The evidence of the three witnesses examined for the defence and the statement made by three witnesses for the prosecution, namely, P.Ws.5 to 7, would support the plea of insanity raised on behalf of the appellant. The appellant's conduct preceding, attending and following the occurrence would lead one to a reasonable conclusion that at time of commission of the offence of double murder, the appellant was insane and by reason of unsoundness of his mind, he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. It was not a case of mere medical insanity, but one of legal insanity. There had been no deliberation and preparation for the act. The acts committed by the appellant did not indicate that the appellant had shown a desire for concealment. No effort had been made by the appellant to avoid detection. The appellant had neither offered false excuses nor made false statement after his arrest. The prosecution has failed to establish that the appellant had committed the offence with the requisite mens rea. There is no material that during the trial or thereafter, the appellant has exhibited signs of insanity, but the evidence would clearly point to the conclusion that the acts complained of had been committed when the appellant was not in a position to understand the nature of his act owing to insanity at the crucial point of time, as would be clear from his conduct during the night of occurrence, on the day following and also on the day of observation by the Psychiatrist (P.W. 10). The facts evidence and circumstances indicated above clearly make out a case of insanity provided in Section 84 of the Code.
This Court in the case of Ajaya Mahakud v. State reported in 1993, Vol. 75, C.L.T.439 : 1993 (I) OLR 97 laid down the circumstances under which the benefit of Section 84 I.P.C. can be extended. The observations made by this Court in the said judgment are quoted below:
The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was Labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did know it, that he did not know he was doing what was wrong. The crucial point of time for deciding whether the benefit/of this section could be given or not is the material time when the offence takes place. If at that moment a man is found to be labouring under such a defect of reason as not to know the nature of the act he was doing or that, even if. he knew it, he did not know it was either wrong or contrary to law then this section must be applied. In coming to that conclusion, the relevant circumstances, are to be taken into consideration. It would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, page 166 has observed that if a person cuts off the head of a sleeping man because 'it would be great fun to see him looking for it when he woke up', it would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realize the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently clear to apprehend what he is doing, he must always be presumed to intend the consequences of the action he takes. Mere absence of motive for a crime, howsoever, atrocious it may be, cannot, in the absence of plea and proof of legal insanity, bring the case within this section. The Supreme Court in Sheralliwalli Mohammed v. State of Maharashtra 1972 Cri. L.J. 1523 (S.C.), held that the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have the necessary mens rea for the offence. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M' Naughton Rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M'Naughton's case (1843) 4 St. Tr. (N.S.) 847. In Sidheswari Bora v. The State of Assam 1981 Cri. L.J. 1005, a Bench of Guahati High Court where the accused killed her ailing child of three and there was also some evidence elicited in cross-examination to show that the accused had suffered from mental derangement two years prior to the incident, it was held that the mere fact that the murder was committed on a sudden impulse or as a mercy killing was no ground to give her the benefit of Section 84, I.P.C., even though both uthanesia (mercy killing) and irresistible impulse would entitle the accused in England to get the benefit of diminished responsibility and her crime would be treated as manslaughter (i.e., culpable homicide not amounting to murder). In a latter case, the same High Court felt that where the accused has made out a prima facie case of irresistible impulse the plea has to be taken into consideration in deciding the question of giving benefit of Section 84., (See State of Assam v. Inush Ali 1982 Cri. L.J. 1044). However, the position had undergone a sea change in England after enactment of Homicide Act, 1957. We hope that legislative changes would be brought in with due regard to the far-reaching advancements in the field of psychology of criminal behaviour. Behaviour, antecedent, attendant and subsequent, to the event, may be relevant in finding the mental condition of the accused at the time of the event, but no that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission, of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.
The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour was queer, cannot be sufficient to attract the application of this section.
The Apex Court in the case of Shrikant Anandrao Bhosale v. State of Maharashtra laid down the principles under which the Section 84 I.P.C. can be extended to an accused. The relevant paragraphs are quoted below:
The circumstances that stand proved in the case in hand are these:
1. The appellant has a family history - his father was suffering from psychiatric illness.
2. Cause of ailment not known - heredity plays a part.
3. The appellant was being treated for unsoundness of mind since 1992- diagnosed as suffering from paranoid schizophrenia.
4. Within a Short span, soon after the incident from 27.6.1994 to 5.12.1994, he had to be taken for treatment of the ailment 25 times to hospital.
5. The appellant was under regular treatment for the mental ailment.
6. The weak motive of killing of the wife-being that she was opposing the idea of the appellant resigning the job of a police constable.
7. Killing in daylight - no attempt to hide or run away.
In a recent decision of this Court in the case of State of Orissa v. Duleswar Barik reported in 2007 Vol. 38 OCR 705, the Court again referred to several earlier decisions of the Supreme Court with regard to principles laid down for the purpose of extending the benefit under Section 84 I.P.C. In that case, the Court held that the accused was suffering from insanity and acquitted him of all the charges even though in the said case, the accused committed murder of six persons and had been awarded death sentence by the trial Court.
8. Keeping the aforesaid principles in mind, we now proceed to examine the evidence adduced by the prosecution as well as the defence to find out as to whether the benefit under Section 84 I.P.C. can be extended to the accused-appellant. Shri Goutam Mishra, the learned Counsel appearing for the appellant contended that there was no motive to commit the offence and the appellant was also not secretive about the act he committed. There were multiple murders but there was no preparedness or pre-arrangement and the appellant also did not take help of any accomplice to commit the offence. These factors as stated by the learned Counsel fairly prove that the appellant was suffering from mental illness. The learned Counsel in order to substantiate his submission, referred to the entire evidence to draw attention of the Court that the appellant was suffering from mental illness prior to the occurrence and on the date of occurrence he started assaulting different persons at different places in quick succession without any motive or pre-arrangement openly in public places in presence of others in broad day light. This can never be a conduct of normal human being as stated by the learned Counsel for the appellant. In order to find out as to whether there is any substance in the submission of the learned Counsel for the appellant or not, we have perused the entire evidence adduced before the Court.
9. Out of fourteen witnesses examined on behalf of prosecution, eight are eyewitnesses to the occurrence. Out of eight eyewitnesses, two are also injured. P.W. 1 is an eye witness to the assault on the deceased Gayadhar. He has stated in his deposition that on the date of occurrence, the accused-appellant entered into the shop holding a Bhujali and the deceased Gayadhar was present in that shop to purchase some grocery articles. The accused-appellant gave a push to deceased Gayadhar and as soon as he fell down on the road, the accused-appellant assaulted by means of the said Bhujali on his neck causing bleeding injury and Gayadhar died at the spot. P.W. 2 is an eyewitness to the assault on injured Dinakrushna Das. He has stated in his deposition that on the date of occurrence at about evening, he was at the shop of Sanatan and the injured Dinakrushna Das was standing nearby him. The appellant came running and dealt a blow with a Bhujali on the head of Dinakrushna Das causing bleeding injury. P.W. 3 is Dinakrushna Das himself, who was assaulted by accused-appellant in presence of P.W. 2. P.W. 5 is also an eye-witness to the assault on P.W. 3 and he has specifically stated that the accused-appellant came running and dealt a blow on Dinakrushna Das. P.W. 7 is an eyewitness to the assault on deceased Gayadhar. P.W. 9 is a witness to assault on the injured Banamali Khatu, P.W. 11. This witness has specifically stated that on the date of occurrence at about evening, when he was standing near the truck, Jagadananda, Bhola and others were also standing near him. The accused-appellant came running with a Bhujali and dealt a blow on the neck of P.W. 11, P.W. 10 is also a witness to the assault on P.W. 11 as well as the deceased Jagadananda. He in his deposition has stated that the appellant came near the truck and dealt a blow on the neck of P.W. 11 and after P.W. 11 fell down, the appellant assaulted Jagadananda with that Bhujali and Jagadanada also fell down with bleeding injury. Thereafter, the appellant ran away towards his village with Bhujali. Jagadananda died at the spot. P.W. 11 himself is the injured Banamali Khatua, who speaks of about the assault on him.
10. On close examination of evidence these seven eyewitnesses, it appears that the accused-appellant holding a Bhujali indiscriminately assaulted five persons, as a result of which, three of them died and two were severely injured. There is nothing on record to show that the accused-appellant had any enmity or dispute with anyone of these five persons. The motive for such assault is also not established by the prosecution. It also appears from the evidence of these eyewitnesses that the appellant ran from one place to other and on his way he assaulted five persons indiscriminately without any rhyme or reason and in the process, caused death of three of them. There was no intention either to commit murder of three persons or to cause injury to two others. The conduct of the appellant itself does not appear to be the conduct of a normal human being. P.W. 3 in cross-examination has stated that the accused-appellant was otherwise a good person and due to some family trouble, he did such act. P.W. 6 in cross-examination has stated that once or twice the accused appellant had been taken to hospital as he became insane and in the early morning on the date of occurrence, he was not found to be mentally sound. P.W. 6 is the agnatic brother of accused-appellant. P.W. 7 in cross-examination has stated that the appellant was once taken to medical but he does not know the reason for the same. P.W. 11, who is an injured eyewitness, has also stated in cross-examination that the accused-appellant was treated prior to the incident as he was mentally unsound. Three witnesses were examined on behalf, of the defence. D.W. 1 is an uncle of accused-appellant. He has stated in his deposition that the accused-appellant was suffering from insanity and he was getting him treated at Cuttack. The appellant had developed insanity since 1990 and after taking medicine he used to have such spell of insanity. Two to three days prior to the date of occurrence, lie again had a spell of insanity and tore the medical prescriptions and cash memos. D.W. 2 is a co-villager, who has stated that the accused-appellant has no criminal background. At times he used to go mad. There has been attack of madness on him three to four times. During the preceding three to four days of the occurrence, the appellant had developed madness.. During that period, he assaulted his mother and had cut many trees. D.W. 1 and the mother of the appellant were treating the appellant with doctors for his madness. D.W. 3 is also a co-villager, who has stated about such madness of the appellant.
11. Considering the evidence of seven eye-witnesses and the defence witnesses, we are of the view that there is considerable force in the contention of the learned Counsel for the appellant that the accused-appellant was suffering from insanity prior to and when the occurrence took place. The manner in which he discriminate assaulted five persons without any rhyme or reason and the very fact that he was not secretive of such act and did the act openly in presence of the villagers without any motive or preparedness clearly indicates that the appellant was of unsound mind at the time of occurrence. The conduct of the appellant also in behaving like a insane person gets support from the evidence of prosecution witnesses that he was being treated for insanity and two to three days prior to the occurrence, he had developed such insanity.
12. Under these circumstances, we are of the considered view the benefit of Section 84 of the Indian Penal Code should be extended to the accused-appellant. Having found that the appellant was of unsound mind at the time of commission of offence, we set aside the impugned judgment of the trial Court convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to death as well as his conviction for commission of offence under Section 307 of I.P.C. We further direct that the accused-appellant shall be examined by an expert, preferably, by a Professor of Department of Psychiatry of any of the Government Medical Colleges and Hospital in the State and only if the Professor certifies that it is safe to set the appellant at liberty, he shall be set at liberty immediately thereafter. But if the said expert finds otherwise, then the accused-appellant shall be rendered necessary treatment as an indoor patient in any of the Medical Colleges and Hospitals.
13. Accordingly, the Criminal Appeal is disposed of and the DSREF is answered.
B.K. Patel, J.
14. I agree.