Karnataka High Court
The State Of Karnataka vs Paramesh on 25 September, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.1122/2014
BETWEEN:
THE STATE OF KARNATAKA
THROUGH J.C. NAGAR POLICE STATION,
BANGALORE-560006.
... APPELLANT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP)
AND:
PARAMESH,
S/O LATE B. SIDDAPPA,
AGED 35 YEARS,
R/O No.3-4-484/9,
2ND FLOOR,
OPP: TO LINGAMMA PALAKLI,
REDDY WOMENS COLLEGE,
NARAYAN GUDDA,
HYDERABAD ANDRA PRADESH-500029.
... RESPONDENT
(BY SMT. P.V. KALPANA, AMICUS CURIAE VIDE ORDER DATED
15.09.2020)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 20.09.2014 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT-VI, BANGALORE IN S.C.
No.819/2007 ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 307 OF INDIAN
PENAL CODE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The State filed the present appeal against the Judgment and Order of acquittal dated 20.09.2014 made in S.C. No.819/2007 on the file of the City Fast Track (Sessions) Judge, FTC-VI, Bangalore City acquitting the sole accused for the offence punishable under Section 307 of IPC.
I. BRIEF FACTS OF THE CASE
2. It is the case of the prosecution that the marriage of the accused with N.V. Bharathi (sister of PW.6 - Anuradha and sister-in-law of PW.5, injured) was performed on 1.11.2006. After the marriage, on the intervening night 3 of 1/2-11.2006 at about 1.00 a.m. when all the family members were sleeping in the 1st floor house of Krishnappa building, Link Road, Chinnappa garden, Bangalore, the accused who was sleeping in another room of the said house, made an attempt to commit murder of PW.5 - Nagaraj by assaulting with knife - MO.1 on his neck, chest and cheek and caused grievous bleeding injuries, suspecting that he had an illicit relationship with his wife - Bharathi. The jurisdictional Police registered a case in Crime No.228/2006 against the accused for the offence punishable under Section 324 of IPC. After investigation, the jurisdictional Police filed the final report for the offences punishable under Sections 324 and 307 of IPC. The learned Magistrate has committed the case to the Court of Sessions. The learned Sessions Judge framed the charge on 16.7.2008 for the offence punishable under Section 307 of IPC and read over to the accused. The accused pleaded not guilty and claimed to be tried.
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3. In order to prove the guilt of the accused, the prosecution, in all, examined 17 witnesses as per PWs.1 to 17 and got marked the documents - Ex.P1 to Ex.P9 and the material objects - Mos.1 to 9. On behalf of the defence, Dr. Kasthuri was examined as DW.1 and got marked the documents - Ex.D1 to Ex.D4.
4. After completion of evidence on behalf of the prosecution, the statement of the accused was recorded as contemplated under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating evidence adduced against him and also the case set up by the prosecution.
5. On 8.7.2014, the accused got examined Dr. Kasturi, Assistant Professor and Psychiatrist working at Victoria Hospital as DW.1 and got marked the documents - Ex.D1 to Ex.D4.
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6. Based on the aforesaid pleadings, the trial Court framed the point for consideration and after considering both oral and documentary evidence, the trial Court recorded a finding that the prosecution failed to prove that on 1/2.11.2006 at about 1.00 a.m. when all the family members were sleeping in the 1st floor house, the accused made an attempt to commit the murder of PW.5 - Nagaraja by assaulting with knife on his neck, chest and cheek and caused grievous bleeding injuries, suspecting that PW.5 had illicit relationship with his wife - Smt. N.V. Bharathi and thereby failed to prove that the accused committed the offence punishable under Section 307 of IPC. Accordingly, the learned Sessions Judge by the impugned Judgment and order of acquittal, acquitted the accused for the offence punishable under Section 307 of IPC. Hence, the present appeal filed by the State.
7. Inspite of the repeated notices issued, the respondent is not served as can be seen from the order 6 sheet of this Court. Considering the Police report dated 9.8.2019, this Court by the order dated 16.9.2019 appointed Sri R.Ganesh Kumar, as an Amicus Curiae to assist the Court. When the matter was posted on 15.9.2020, he was not present and his name not found in the list of Panel Advocates for criminal matters furnished by High Court Legal Services Committee. Therefore, on that day this Court appointed Smt. P.V. Kalpana, learned counsel as Amicus Curiae in place of Sri R. Ganesh Kumar, to assist the Court.
8. We have heard the learned counsel for the parties. II. ARGUMENTS ADVANCED BY THE LEARNED ADDL. SPP FOR THE APPELLANT - STATE
9. Sri Vijaya Kumar Majage, learned Addl. SPP contended that the impugned Judgment and order of acquittal passed by the trial Court acquitting the accused for the offence punishable under Section 307 of IPC, is 7 without any basis and liable to be set aside. He further contended that the learned Sessions Judge has not considered the fact that no medical records relating to earlier to the incident are produced to show that accused was suffering from paranoid schizophrenia and also not produced the certified copies of the medical documents and only xerox copies are produced at the time of arguments to prove that the accused was suffering from mental disorder. Therefore, the impugned judgment and order of acquittal cannot be sustained and the accused has to be convicted for the alleged offence. The learned Addl. SPP further contended that after the incident, the wife of the accused filed Matrimonial Case No.2771/2006 for divorce under Section 12(1)(c) of the Hindu Marriage Act, wherein the wife has taken a contention that the marriage was performed without her consent and the accused - husband was suffering from mental illness and the said Matrimonial Case came to be decreed on 4.3.2008. Against the said 8 judgment and Decree of the Family Court, the accused filed MFA No.7683/2008 before this Court contending that he was very fit among other grounds. This clearly indicates that the learned Sessions Judge was not justified in acquitting the accused on the ground of mental illness or disorder.
10. The learned Addl. SPP further contended that the learned Sessions Judge has not evaluated and appreciated the evidence of PW.5, injured eye witness who explained as to how the incident happened. The learned Sessions Judge has not evaluated the evidence of PWs.3 and 4, the material witnesses whose evidence corroborated with the evidence of PW.5. The learned Sessions Judge has also not evaluated the evidence of PW.6 (wife of PW.5) though she is an eye witness to the incident so also the evidence of PWs.7 and 8, the eye witnesses and relatives of the injured and the same has been ignored. The said evidence depicts that the accused had made an attempt to murder PW.5 with 9 MO.1. The said aspect of the matter has not been considered. He would further contend that the learned Sessions Judge has not considered the evidence of PWs.11 to 16, who being the official witnesses, have played vital role in conducting investigation and clearly prove beyond reasonable doubt that the accused involved in the attempt of murder of PW.5 as per the charge made against him. He would further contend that the learned Sessions Judge proceeded to acquit the accused only on the basis of assumptions and presumptions without any material on record that the accused was suffering from mental disorder before his marriage and accused has not discharged the initial burden that he was suffering from paranoid schizophrenia. Therefore, he sought to allow the appeal. III. ARGUMENTS ADVANCED BY SMT. KALPANA, LEARNED AMICUS CURIAE
11. Smt. Kalpana, learned Amicus Curiae while justifying the impugned judgment of acquittal, has 10 contended that the medical certificate produced and the evidence of DW.1 - Dr. Kasturi clearly indicate that the accused was taking treatment from psychiatrist even prior to the incident. The said fact has not been denied by the prosecution. In the medical report produced before the Court in Criminal Misc. 3768/2006 while seeking bail in the year 2006, the accused has taken specific contention of plea of insanity and unsoundness of mind as per Section 84 of the Indian Penal Code and same was accepted and bail was granted and the same has reached finality.
12. The learned amicus curiae further contended that when MO.1 - knife alleged to have been used by the accused on PW.5 was shown to PW.5 in his evidence, after seeing the said MO.1, he has stated before the Court that MO.1 is not the knife which was used for commission of the offence by the accused as alleged.
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13. The learned amicus curiae would contend that as per the contents of Ex.P3 - complaint, the complainant (PW.7) has given the complaint before the Police on 1/2.11.2006 at 3.30 a.m, but in the examination-in-chief, PW.7 has stated that on the next day of the incident, he has gone to the Police Station at 8 to 8.30 a.m. and given the complaint as per Ex.P3. This shows that there are contradictions and omissions in the evidence of the complainant (PW.7) with respect to the time at which complaint said to have been given. That is one of the circumstance to doubt the case of the prosecution.
14. The learned amicus curiae further contended that admittedly Smt. N.V. Bharathi w/o accused has not been examined. She would further contend that Smt. N.V. Bharathi filed Matrimonial Case No.2771/2006 for divorce under Section 12(1)(c) of the Hindu Marriage Act on the ground that her marriage was performed without her consent by playing fraud and further that accused was 12 suffering from mental disorder and accordingly, decree came to be passed on 4.3.2008 declaring the marriage between the accused and N.V. Bharathi as null and void. Though MFA No.7683/2008 filed by the accused came to be dismissed by this Court on 3.2.2009, the finding recorded by the Family Court that the accused was suffering from mental disorder or mental illness, is confirmed by this Court on the civil side and the same is binding on the criminal side.
15. She further contended that PW.1 - Dr. P.N. Prakash has deposed with respect to treatment given by him to the injured (PW.5) and PW.2 - Dr. S.K. Supreeth has deposed with regard to condition of the patient (PW.5) and the permission given by her to the Police to record his statement in the hospital. She further contended that the Wound Certificate - Ex.P1 clearly depicts that the injury No.1 is grievous and injury Nos.2 to 8 are simple in nature. 13
16. In view of the above, she submits that at the time of commission of crime, the accused was incapable of knowing the nature of the act by reason of unsoundness of mind and therefore, he is entitled to the benefit of Section 84 of IPC and sought to dismiss the appeal.
IV. POINT FOR CONSIDERATION
17. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present appeal is:
"Whether the prosecution has made out a case to interfere with the impugned judgment and order of acquittal, exercising the powers under the provisions of Sections 378(1) and (3) of the Code of Criminal Procedure, in the facts and circumstances of the case ?"
18. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties 14 and perused the entire material including the original records carefully.
V. EVIDENCE OF THE PROSECUTION WITNESSES AND THE DOCUMENTS RELIED UPON
19. In order to re-appreciate both the oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
PW.1 - Dr.P.N. Prakash has deposed that he has given treatment to the injured PW.5 - Nagaraj. He supported the prosecution case.
PW.2 - Dr. S.K. Supreeth has deposed with regard to condition of the patient - PW.5 and permission given by her to the Police to record his statement in the hospital.
PW.3 - N. Venkatalakshmaiah and PW.4 - Saraswathi are the husband and wife and in-laws of the accused and 15 they have stated that they are the eye witnesses to the incident occurred on the intervening night of 1/2.11.2006 at about 1.00 a.m. PW.5 - Nagaraj, who is the injured is the elder son-
in-law of PWs.3 and 4 and he identified MOs.2 and 3. He has stated that MO.1 is not the knife used for commission of the offence by the accused.
PW.6 - Anuradha is none other than the wife of PW.5 and she is one of the eye witness to the incident. She has supported the prosecution case.
PW.7 - Obalesh is the husband of younger sister of PW.3 and he is said to be one of the eye witness to the incident and he has given the complaint as per Ex.P3. He has supported the prosecution case.16
PW.8 - Kanthamma is none other than younger sister of PW - 4 and she is also stated to be eye witness to the incident. She has supported the prosecution case.
PW.9 - Eshwaraiah is the husband of PW.8 and he is also one of the eye witness to the incident. He has supported the prosecution case.
PW.10 - Gopinath is the Photographer and he has deposed with regard to the photos clicked by him at the spot of the incident as per the request made by the Police.
PW.11 - T. Vasanthroy is the Police Constable, who deposed in respect of handing over three sealed covers to the FSL as per the direction of the higher authorities. He has supported the prosecution case.
PW.12 - Ramakrishnaiah, who is the PSI, has deposed that he received the complaint from the complainant (PW.7) 17 and registered the FIR against the accused and sent the same to the Court.
PW.13 - Basavalingappa, who is the PSI has stated that he has recorded the statement of the injured - Nagaraj in the hospital. He also stated that himself and PW.11 apprehended the accused and produced him before the Investigating Officer on 3.11.2006.
PW.14 - Nijalingappa, who is the retired PSI is one of the Investigating Officer. He has supported the prosecution case.
PW.15 - Prakash, who is the Head Constable has deposed that he shifted the injured - PW.5 from the house of PW.3 to the hospital for treatment.
PW.16 - C. Gopal, who is the Police Inspector and Investigating Officer has investigated the matter and filed the final report.18
PW.17 - Smt. Shahanaz Fathima, who is the Scientific Officer has deposed that she examined the seized articles which were sent to her by the Police and issued the serology report.
VI. FINDINGS OF THE TRIAL COURT
20 . Based on the aforesaid material documents, the learned Sessions Judge held that the prosecution failed to prove beyond reasonable doubt that the accused involved in the attempt to murder of PW.5 and further recorded a finding that the records produced by the accused clearly depict that he was taking treatment from Anu Neuro Psychiatric Clinic, Hyderabad prior to the incident and the same was not denied by the prosecution. The medical records produced by the accused before the Fast Track Court - X, Bengaluru, when he filed application for bail depicts that he took treatment from psychiatrists prior to the incident and thus from the beginning itself, the accused 19 has taken the plea of insanity or unsoundness of mind as contemplated under Section 84 of IPC.
21. The trial Court further recorded a finding that the wife of the accused viz., Smt. Bharathi has filed Matrimonial Case No.2771/2006 under Section 12(1)(c) of the Hindu Marriage Act contending that her marriage was performed without her consent by playing fraud and the accused was suffering from mental illness prior to the marriage etc., Ultimately, the said petition came to be allowed and granted decree of divorce on 4.3.2008 and the same was affirmed by this Court in MFA No.7683/2008 by the Judgment 3.2.2009. Therefore, the finding recorded by the Family Court that the accused was suffering from mental illness prior to the marriage, is confirmed by this Court on the civil side and the same is binding on the criminal side.
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22. The trial Court further recorded a finding that as per the contents of Ex.P3 - complaint, the complainant (PW.7) has given the complaint before the Police on 1/2- 11.2006 at 3.30 a.m., but in the examination-in-chief PW.7 has stated that on the next day of the incident, he has gone to the Police Station at 8 or 8.30 a.m. and given the complaint and thus there are contradictions and omissions in the evidence of PW.7. Further, the injured person (PW.5) has denied the use of MO.1 - knife by the accused for commission of the offence.
23. In the facts and circumstances of the case, the trial Court considering that at the time of commission of the offence, the accused was incapable of knowing the nature of the act by reason of unsoundness of mind, held that the accused is entitled to the benefit of section 84 of IPC and accordingly acquitted the accused for the charges leveled against him.
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VII. CONSIDERATION
24. On careful re-appreciation of the entire oral and documentary evidence on record, it clearly depicts that the marriage between Bharathi and the accused took place on 1.11.2006 and the incident happened on the intervening night of 1/2.11.2006 at about 1-00 a.m. It is the case of the prosecution that on the 1st day of the marriage i.e., 1.11.2006, somebody sent a message to the mobile of the accused and therefore, the accused attacked PW.5 in the night. Admittedly, the mobile phones of the accused as well as the person, who sent the message to the accused, have not been seized and not produced any call details with regard to the conversation. It is further case of the prosecution that PWs.3, 4,6,7,8 and 9 are said to be the eye witnesses to the incident occurred on the intervening night of 1/2.11.2006 at about 1.00 a.m. Admittedly, PWs.5 and 6 are relatives of the said witnesses. It is PW.5 who arranged the marriage between the accused and Smt. N.V. 22 Bharathi (sister of PW.6 and sister-in-law of PW.5). The theory putforth by the prosecution that merely because he received some information on 1.11.2006, he attacked PW.5 on the same night at 1.00 a.m., is unimaginable. The record also depicts that it is PW.5 who persuaded the accused to marry N.V. Bharathi. Admittedly, the wife of the accused i.e., Bharathi has not been examined. It is the specific case of the accused that he was suffering from paranoid schizophrenia, a major mental disorder even prior to the marriage and knowing fully well, PWs.3 and 4 (father and mother of Bharathi) performed the marriage of their daughter with him.
25. After examination of the accused, DW.1 - Dr. Kasturi has stated that the accused is suffering from Hallucination and delusion and he is not in a position to think himself. Further, she has stated that she has treated the accused from 2010 to 2012 and identified the medical certificates issued by her as per Ex.D1 to Ex.D3. In the 23 medical certificate - Ex.D2, it has been stated that she examined the accused and come to the conclusion that the said patient exhibits the following signs and symptoms of psychiatric disorder:
"He is suffering from paranoid schizophrenia.
- Hallucination
- Delusion
- Thought disorder"
In the cross-examination, DW.1 has admitted that some other doctor has written the writings in Ex.D4.
26. It is also not in dispute that when the accused applied for bail in Criminal Misc. No.3768/2006, he contended in the bail petition that he is a psychiatric patient and he was not knowing the nature of the act what he was doing and he was under medication for his mental illness. It is also not in dispute that the wife of the accused filed the petition for divorce under Section 12(1)(c) 24 of the Hindu Marriage Act on the ground that the marriage between her and the accused was performed without her consent by playing fraud and she further stated that the accused was suffering from mental disorder and ultimately Matrimonial Case filed for divorce came to be decreed and affirmed by this Court on 3.2.2009 in the MFA No.7683/2008 filed by the accused.
27. The material on record clearly depicts that the accused has taken treatment from 2006 to 2008 in a private clinic and consultant psychiatrist at Hyderabad. The learned Sessions Judge recorded a finding that it is seen from the medical records that on 20.4.2006 i.e., prior to the date of the incident, the accused had taken treatment at Anu Psychiatric Clinic and Anu Research Institute of Psychotherapy, Hyderabad for the mental illness and in the said medical document, it is mentioned that there is a suspicion on friends that they are trying to kill him. The concerned doctor has noted other proceedings 25 and findings after examining the accused. The accused has also taken treatment on 26.4.2006, 15.5.2006, 18.1.2007, 1.6.2007, 11.1.2008, 10.10.2008 and 10.6.2009 from the psychiatrist of Anu Neuro Psychiatric clinic, Hyderabad, which clearly depicts that the treatment was taken before and after the incident continuously.
28. It is the case of the prosecution that on the 1st day of marriage, somebody sent a message to the mobile of the accused that PW.5 had an illicit relationship with Smt.Bharathi (wife of the accused) and due to the said reason, accused had suspicion in his mind to that effect and in view of the same, he attacked PW.5 on the date of the incident and attempted to kill him with knife, which cannot be accepted. Admittedly, the prosecution has not seized the mobiles of the accused and the person who has sent message to the accused nor collected the call details. PW.3 has simply stated that he came to know that the accused has received a phone call and for that reason, he assaulted 26 PW.5. The same is the evidence of PWs.3,4 and 6. But, the said three witnesses have not stated in their evidence to the effect that on the 1st day of the marriage, somebody sent message to the mobile of the accused that PW.5 had an illicit relationship with Bharathi (wife of the accused) and due to that reason, the accused had suspicion in his mind and in view of the same, he attacked PW.5 in the night and attempted to kill him with knife. Therefore, it creates a doubt in the mind of the Court with regard to the bonafides of the case of the prosecution. PW.5 in his evidence has stated that after enquiry, he came to know that somebody have told to the accused through phone that he (PW.5) had illicit relationship with Bharathi and due to that reason, the accused attacked him. But, he has given statement before the Police on 3.11.2006 that somebody have sent message to the mobile phone of the accused and by believing the said message, the accused assaulted him on the date of the incident with knife. But, PW.5 has not stated in his 27 evidence to that effect. There is inconsistency in the evidence of PWs.3,4,6 and PW.5 and there is no sufficient material to prove that the accused has attacked PW.5 on the information messaged to his mobile phone by somebody and further, Bharathi w/o accused has not been examined by the prosecution. This is one of the reasonable circumstances that creates doubt in the mind of the Court to believe the case of the prosecution.
29. According to the prosecution, as a customary manner at the time of the marriage, the bridegroom was given a knife and accordingly in the said marriage, MO.1 - knife was given to the accused (bridegroom) by the parents of the bride and by using the said knife, he attacked and made an attempt to kill PW.5. But in the evidence of PW.5 when MO.1 - knife was shown to him, he has stated that MO.1 is not the knife which was used for commission of the offence by the accused. This clearly indicates that the injured has not identified the knife used for commission 28 of the offence. This is also one of the circumstance to doubt the case of the prosecution.
30. PW.7, who is the complainant stated in Ex.P3 - complaint that he has made a statement before the Police on 1/2-11.2006 at about 3.30 a.m. But in the examination-in-chief, he has stated that on the next day of the incident, he had gone to the Police Station at 8 or 8.30 and given the complaint and thereafter the Police came to the house of PW.3 and prepared the mahazar. By careful reading of the statement made before the Police as per the complaint and the statement recorded before the Court, there are contradictions and omissions in the evidence of PW.7.
31. Ex.P4 is the seizure mahazar drawn by PW.4 - PSI at the spot. Under the said mahazar, PW.4 seized articles - Mos.1 to 3 in presence of PW.9 (panch witness). PW.9, who is the panch witness, has stated with regard to 29 mahazar - Ex.P4 prepared by the Police at the spot and seizure of MOs.1 to 3 under the said mahazar. PW.7 also stated with regard to Ex.P4 - mahazar drawn by the police and seizure of MOs.1 to 3 under the said mahazar. But, the injured person - PW.5 after seeing MO.1 - knife before the Court has stated that the said knife is not the weapon which was used for commission of the offence by the accused. Therefore, it creates doubt in the mind of the Court as to whether the Police have seized the weapon used for commission of the offence. In view of the same, it is difficult to accept the versions of PWs.7 and 9 to prove the contents of Ex.P4 - mahazar and seizure of knife under the said mahazar. Thereby, the prosecution has failed to prove the seizure of actual weapon that was used for commission of the offence by the accused as alleged.
32. In so far as the oral evidence of other witnesses i.e., PW.1 - Dr. Prakash has deposed with regard to the treatment given by him to the injured PW.5; PW.2 - Dr. 30 S.K. Supreeth has deposed with regard to condition of PW.5 and permission given by her to the Police to record the statement of PW.5 in the hospital; PW.10 - photographer has deposed with regard to the photos clicked by him at the place of incident as per the request of Police; PW.11 - Police Constable has deposed with respect to handing over three sealed covers to FSL ; and PW.12 - PSI has deposed with regard to receipt of complaint from PW.7 and registration of the case. Thus, on the basis of oral evidence of these witnesses, it is difficult to believe the case of the prosecution.
33. By careful re-appreciation of the entire material on record, it clearly depicts that an inference can be drawn that the accused was under unsoundness of mind at the time of the incident. Having regard to the nature of burden on the accused, this Court is of the considered opinion that the accused has proved the existence of circumstances as required under Section 105 of the Indian Evidence Act so as 31 to get the benefit of Section 84 of IPC. On re-appreciation of the entire oral and documentary evidence on record, it clearly depicts that at the time of commission of the crime, the accused was incapable of knowing the nature of act by reason of unsoundness of mind and thus, he is entitled to the benefit of the provisions of Section 84 of IPC.
34. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of STATE OF RAJASTHAN -vs- SHERA RAM reported in (2012)1 SCC 602, wherein the Hon'ble Supreme Court while considering the provisions of Section 84 of the Indian Penal Code, held at paragraphs 16, 17, 20 to 27 as under:
" 16. Section 84 states that:
"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 what he is doing is either wrong or contrary to law."32
It is obvious from a bare reading of this provision that what may be generally an offence would not be so if the ingredients of Section 84 IPC are satisfied. It is an exception to the general rule. Thus, a person who is proved to have committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter
17. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntas est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour.
20. Epileptic psychosis is a progressing disease and its effects have appropriately been described in the 33 textbook of Medical Jurisprudence and Toxicology by Modi, 24th Edn., 2011 where it states as follows:
"Epileptic psychosis.--Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite a few of them suffer from mental deterioration. Religiosity is a marked feature in the commencement, but the feeling is only superficial. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause.
The disease is generally characterised by short transitory fits of uncontrollable mania followed by complete recovery.
The attacks, however, become more frequent. There is a general impairment of the mental faculties, with loss of memory and self-control. At the same time, hallucinations of sight and hearing occur and are followed by delusions of a persecuting nature. They are deprived of all moral sensibility, are given to the 34 lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long-standing cases, there is a progressive dementia or mental deficiency.
True epileptic psychosis is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as pre-
epileptic, post-epileptic and masked or psychic phases (psychomotor epilepsy).
Post-epileptic mental ill-health.--In this condition, stupor following the epileptic fits is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognise his own relatives, and wanders aimlessly. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently, may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to 35 conceal them at the time of perpetration but on regaining consciousness may try to conceal them out of fear."
21. Similar features of epilepsy have been recorded in HWV Cox's Medical Jurisprudence and Toxicology (7th Edn.) by P.C. Dikshit.
22. Reverting to the facts of the present case, it may be noted that no witness of the prosecution including the investigating officer stated anything with regard to the mental condition of the respondent. However, the respondent not only in his statement under Section 313 CrPC took up the defence of mental disorder seeking benefit of Section 84 IPC but even led evidence, both documentary as well as oral, in support of his claim.
23. The respondent examined Dr. Vimal Kumar Razdan, DW 2, who deposed that he had examined the respondent and had given him treatment. He also produced the examination report in regard to the treatment of the respondent, Ext. D-5, which was prepared in his clinic. According to the statement of the doctor and the prescription, the respondent was suffering from epilepsy and while describing post-epileptic insanity, this witness stated 36 that after the epileptic attack, a patient behaves like an insane person and he is unable to recognise even the known persons and relatives. During this time, there is a memory loss and the patient can commit any offence.
24. In the prescription, Ext. D-3, issued by Dr. Ashok Pagadiya, it was stated that the patient was suffering from the fits disease and symptoms of behavioural abnormality. Two types of medication on the basis of diagnosis of epileptic disease and other one for insanity were prescribed to the respondent who continued to take these medicines, post-epileptic insanity.
25. Another witness who was produced by the defence was DW 1, Bhanwar Lal, the brother of the respondent. According to this witness, the respondent was suffering from mental disorder since 1993. He stated that when he gets the fits of insanity, he can fight with anybody, hit anybody and even throw articles lying around him. At the initial stage, Dr. Devraj Purohit had treated him. Then Dr. V.K. Razdan treated him and thereafter, in Jaipur, Dr. Ashok Pagadiya/Pandharia also treated him. Even when he was in jail, he was under treatment. He produced the prescription slips i.e. Exts. D-3 and D- 37
4. This witness has also stated that on the date of occurrence at about 6.00-6.30 a.m., Shera Ram, the respondent, was not feeling well and, in fact, his condition was not good. Even at home he had broken the electricity meter and the bulbs. When the people at home including the witness tried to stop him, he had beaten DW 1 on his arm and after hitting him on the face he had run away.
26. This oral and documentary evidence clearly shows that the respondent was suffering from epileptic attacks just prior to the incident. Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own family members. After committing the crime, he was arrested by the police and even thereafter, he was treated for insanity, while in jail.
27. Thus, there is evidence to show continuous mental sickness of the respondent. He not only caused death of the deceased but also on the very same day injured and caused hurt to his family members including DW 1. His statement made under Section 313 CrPC is fully corroborated by the oral and documentary evidence of DW 2 and Exts. D-3 and D-4. Though the High Court has not discussed this evidence in great detail, but this being an 38 admissible piece of evidence, can always be relied upon to substantiate the conclusion and findings recorded by the High Court."
35. As stated supra, the wife of the accused - Bharathi has filed Matrimonial Case No.2771/2006 before the Family Court under the provisions of Section 12(1)(c) of the Act on the ground that the marriage was performed without her consent by playing fraud and that the accused was suffering from mental illness. Admittedly, the said Matrimonial Case No.2771/2006 came to be decreed on 4.3.2008 on the ground of mental illness of the accused before and after the marriage. Though an appeal came to be filed before this Court in MFA No.7683/2008, this Court dismissed the said MFA on 3.2.2009, which clearly depicts that the finding recorded by the Family Court that the present accused was suffering from mental illness before and after marriage, is confirmed on the civil side. The same is binding on the criminal Court as rightly held by the 39 learned Sessions Judge in the impugned Judgment and order of acquittal.
36. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of M/s Karamchand Ganga Pershad and another -vs- Union of India and others reported in AIR 1971 SC 1244, wherein the Hon'ble Supreme Court held at paragraph-4 as under:
"4. A Division Bench of the Delhi High Court after elaborately hearing the arguments advanced in the case on the various issues arising for decision in the case rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some Courts in the State of West Bengal, it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. In our opinion the High Court seriously erred in coming to this conclusion. If the appellants are able to establish their case that the ban on export of maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the Maize automatically 40 fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. The High Court after entertaining the writ petitions and hearing arguments on the merits of the case should not have dismissed the petitions merely because certain consequential proceedings had been taken on the basis that the exports in question were illegal. For the decision of the controversy between the parties to the writ petitions neither the presence of the State of West Bengal nor the authorities who took penal action was necessary. The validity of the steps taken by them, as mentioned earlier, would depend upon the validity or otherwise of the export in question."
37. It is not in dispute that PW.5 arranged the marriage between the accused and Bharathi, who is none other than his sister-in-law on 1.11.2006. Admittedly though the accused was charged under the provisions of Section 307 of IPC, the prosecution failed to prove beyond reasonable doubt the motive of the accused to attack PW.5 41 on 1/2.11.2006 at 1.00 a.m. Admittedly, the injured PW.5 has denied before the Court that MO.1 - knife was used by the accused on the date of the incident for commission of the offence and the material documents clearly prove that the accused was suffering from unsoundness of mind before the incident and after the incident and he did not have necessary mens rea for commission of the offence on the date of the alleged offence. Therefore, he is entitled to the benefit under Section 84 of IPC and the learned Sessions Judge has rightly acquitted the accused for the offence under Section 307 of IPC.
38. Our view is also fortified by the judgment of the Hon'ble Supreme Court in the case of State of Punjab - vs- Mohinder Singh reported in (1983)2 SCC 274, wherein the Hon'ble Supreme Court while considering the provisions of Section 84 of IPC, held as under:
42
"The appellant has been convicted under Section 302 IPC and sentenced to imprisonment for life. He has also been convicted under Sections 25 and 27 of the Arms Act and sentenced to three months' rigorous imprisonment. After going through the evidence of the two doctors it is clear that the accused was suffering from schizophrenia which is one form of insanity. The doctor had examined accused a little before as also a little after the occurrence and he was found insane. The detailed reasons given by both Dr Harbans Lal and Dr Ramkumar have been corroborated by each other. From the evidence also it is clear that he was talking in a very unusual manner saying things to the effect that he had seen Lord Shiva in front of him and the alike. It cannot be said that the finding of the High Court was wrong. In view of these circumstances we are not in a position to take a different view particularly when the appellant was suffering from schizophrenia. The appeals are accordingly dismissed
39. The scope of the appeal filed by the State against the Judgment of acquittal is very limited and unless this Court while considering the material on record finds that 43 findings of the learned Sessions Judge are perverse, this Court cannot interfere with the judgment of acquittal. In the present case, the findings recorded, the reasons assigned and the conclusion arrived at by the trial Court are sound and proper. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the dictums of the Hon'ble Supreme Court stated supra, we do not find any ground to interfere with the well crafted judgment of acquittal passed by the trial Court. The appeal filed by the State is devoid of merits.
VIII. CONCLUSION
40. For the reasons stated above, the point raised in the present appeal is answered in the negative holding that the prosecution has not made out a case to interfere with the impugned judgment and order of acquittal, exercising the powers under the provisions of Sections 378(1) and (3) 44 of the Code of Criminal Procedure, in the facts and circumstances of the case.
41. Accordingly, the appeal filed by the State is dismissed.
42. We place on record the valuable assistance rendered by Smt. P.V. Kalpana, learned amicus curiae. In token thereof, we direct the High Court Legal Services Committee to pay a sum of Rs.8,000/- (Rupees eight thousand only) as honorarium to the learned amicus curiae.
Sd/-
JUDGE Sd/-
Gss/- JUDGE