Bombay High Court
Sau. Saraswati Mahadeo Jadyal vs The State Of Maharashtra on 26 July, 1993
Equivalent citations: 1994(3)BOMCR79
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT M.F. Saldanha, J.
1. The courts while dealing with cases of persons suffering from mental ailments of a sufficiently serious gravity and therefore qualifying for the immunity conferred by section 84 of the Indian Penal Code, are of necessity obliged to consider certain additional aspects beyond the medico legal frame work. Where the accused happens to be a woman and a person coming from the poorest strata of society, the obligation on the Court gets accentuated. The law undoubtedly exonerates from punishment an accused who is legally insane and who therefore was not in a position to know the consequences of his or her acts at the time of the commission of the offence. The Criminal Procedure Code prescribes the manner in which persons of unsound mind are required to be dealt with and in general requires the Court to commit such a person to a Mental Hospital for appropriate treatment. A Court before whom a defense of insanity succeeds cannot merely acquit the accused but will of necessity have to direct that the person should be taken care of adequately in a mental hospital. It is one of the requirements of section 335 of the Code of Criminal Procedure that the Court is required to give a finding as to whether the act complained of was committed by the accused or not, the obvious reason for this being that it would have a bearing on the future course of action. In cases where the accused has displayed violent tendencies, homicidal tendencies, sexual attacks or sexual depravity etc. these aspects are predominant for the purpose of ascertaining as to whether at all it would be safe to release such a person from the Mental Hospital even if the patient responds completely to the treatment. The danger to society at large in the event of a relapse is a predominant consideration for the Court deciding the matter and in this view, it would be appropriate after recording the aforesaid finding, to direct that the authorities incharge of the Mental Hospital shall assess the past history and record of the patient and shall very carefully, after long term observation, record a composite finding as to whether there is any possibility of the patient's reverting to the old condition, whether under provocation or for any other reason.
2. One of the factors which will have to be taken into consideration while dealing with cases of accused persons who, as in the present case have virtually nobody in this world to assist or take care of them or provide for them, or in the cases of patients who are so situated that they will be ill treated or ostracized by their people and driven to beggary if they are to be released, merely because of the earlier displayed insanity, is the obvious question as to whether release from jail would put the accused in a worse situation. The Court will be required to issue appropriate directions to the Doctors and other authorities concerned to decide as to whether in the given or particular set of circumstances, the patient would have a relapse. In such a situation, it would be appropriate for the authorities to keep the patient in the Mental Hospital itself as the release would be both inappropriate and undesirable. First, however, the facts :
3. This appeal presents a set of extremely distressing facts but it also raises certain aspects of some importance vis-a-vis section 84 of the Indian Penal Code. The appellant before us Saraswati Mahadeo Jadyal is a resident of a little village by name Bhadkambwadi, in Ratnagiri District. She comes from an extremely poor strata and was married to a labourer who, as the record indicates, was not only in dire straits but was also an Alcohol addict. The prosecution alleges that the accused had given birth to a male child about a week prior to 18-8-1987. It is alleged that on the night of that day, the accused strangulated the infant and thereafter went to a lonely place and left the body there. Next morning, some of the villagers found the body and being a very small place, it was recognized as that of the child of the accused. She was questioned about it and she is alleged to have admitted to P.W. 6 Laxmibai who is also a local mid-wife and to P.W. 7 Savitri Ramchandra Jadyal who is her sister-in-law, that she had stranguled the child because the husband was not only spending all his money on drink but that he was not giving her any money for the household expenses and care of the child. It appeared from her version that out of severe desperation she had strangled her own child and thrown it away. The Police were informed and they placed her under arrest.
4. We need to record here that it is at this stage that the special features of this case require to be noted. In the course of the investigation and obviously on the basis of the statements made by witnesses, the Police found out that the accused had a history of mental ailment. It was also found out that on an earlier occasion she had not only assaulted but killed her own child and that she had been committed to the mental hospital by the learned Magistrate. She had spent about 14 months in the institution after which she had been discharged. The record indicates that the Police sent the accused for treatment to the Mental Hospital once again and that the Doctors did in fact find that she was suffering from schizophrenia. Without bothering much about this aspect of the matter, the Police however completed the investigation and put the accused up for trial on a charge under section 302 and 201 of the Indian Penal Code. At the trial, in the course of the defence, references did come out before the Court to the effect that the accused was a mentally disturbed person and the basic plea of legal insanity was canvassed on her behalf. In order to substantiate this plea, the defence examined Dr. Badrinarayan Kulkarni as a defence witness. This Doctor is the medical officer from the Mental Hospital, Ratnagiri, and he produced the record in relation to the treatment given to the accused. The learned trial Judge rejected the defence and held that the prosecution had established beyond all doubt that the accused had committed the murder of the infant child and that she had also tried to destroy the evidence in respect of the crime and consequently convicted her under both charges. She was awarded a sentence of rigorous imprisonment for life under the first count and no separate sentence under the second one. It is against this conviction and sentence that the present appeal has been directed.
5. As indicated by us earlier, the facts of this case are not only depressing but are virtually pathetic. The appellant is a very poor person and Mr. Shetye, has been appointed as State Counsel to argue the appeal on her behalf. He has taken us through the prosecution evidence which we shall refer to very briefly because in our considered view much of it is not of any consequence. This is essentially a case of circumstantial evidence. P.W. 1 Dr. Mrs. Gokhale had examined the accused on 19-8-1987 i.e. the day after the incident and she has clearly opined that the physical examination of the accused did indicate that she had delivered a child approximately 7 or 8 days earlier to that. P.W. 2 is the doctor who has done the Post-Mortem and he has clearly indicated that the cause of death of the infant child was due to strangulation and that the child met with a homicidal death. These is on record the evidence of the other villagers who had found the body and who had informed the Police as also the panchas etc. which is not of much importance. P.W. 6 Laxmibai is the local mid-wife and she has stated in her evidence that she had assisted the accused at the time of the delivery of a male child. She also states that when the body was discovered that she asked the accused about the incident and that she confessed to her that the husband was not only an alcohol addict but that he was not providing even the barest minimum necessities for the child and that consequently she was left with no option except to finish it off and to leave it at a lonely place. P.W. 7 Savitribai is the sister-in-law and she has also deposed on similar lines stating that the accused admitted to her that out of abject poverty conditions and desperation, in which she was placed because of the husband's conduct that she had finished off the child. A perusal of the record as it is, establishes that the deceased infant had met with a homicidal death as also that it was in fact the male child delivered by the accused and further more that she has admitted in no uncertain terms to have finished off the child. She has also admitted to P.W. 6 and 7 that she had left the body of the child at a lonely place and under these circumstances, the conviction under section 302 and 201 of the I.P.C. would normally have to be confirmed.
6. Mr. Shetye, learned Counsel appearing on behalf of the appellant has relied very heavily on the defence evidence of Dr. Kulkarni. This evidence is of some significance because it indicates that the accused had been admitted to the Mental Hospital on 16-1-1983 and that she was discharged on 23-2-1984, after a lapse of about 14 months. The record indicates that she had killed her child on the previous occasion and that the learned Magistrate after satisfying himself from the material placed before him that the accused was a person of unsound mind, had committed the accused to the Mental Hospital for treatment. Dr. Kulkarni has indicated that on the present occasion the accused was admitted in the Mental Hospital in September, 1987 i.e. in the month following the present incident and she was discharged on 9-2-1988. On the basis of the case papers he states that she was kept under observation till 8th October, 1987 and that she was found suffering from schizophrenia. What is of importance is the fact that in the course of his examination-in-chief itself the Doctor has deposed as follows :
"After delivery a condition known as post partum psychosis occurs. This means insanity produced after delivery which would be due to changes in the brain and body. Unsoundness of mind may prevail in pregnancy if pregnancy is not wanted by the lady. The Superintendent attends outdoor patients.".....
7. The case papers are also on record and on a perusal of the case papers we find that the accused had apparently told the doctors at all times that it was her husband who had killed the child. Mr. Shetye submits that the record does in fact indicate that the statements of the husband and other family members had been recorded but that they were not examined. Mr. Shetye has advanced an argument that where in the course of investigation it is disclosed that the accused person is suffering from a mental ailment which in law would entitle the accused to claim the benefit of the exceptions provided by the Indian Penal Code, that it is the duty of the prosecution to place all the material indicative of these factors before the Court. In support of his contention. Mr. Shetye has relied on a Division Bench Judgment of the Andhra Pradesh High Court reported in 1985 Criminal Law Journal, page 1824 in the case of Machi Parvaiah v. State of Andhra Pradesh. A Division Bench of the High Court in that case had occasion to examine a series of judgments which are set out below and to place reliance on them in respect of the proposition that it was equally the duty of the prosecution to place before the Court the material that came out in support of the fact that accused was perhaps of unsound mind and would therefore be covered by the exception. The decisions in question are as follows :
1. (1985(1) Andh. L.T. 16 : (1985)1 Crimes 467),-
2. Cri. Appeal No. 123 of 1983, D/-7-3-1985, Andhra Pradesh-Harold Correa v. State of A.P.,
3. Sanna Eranna v. State of Karnataka, 1983 Cri. L.J. 619 (Kant.)
4. (1983 Cri. L.J. 1385 (Orissa)),
5. Keshavrao Bhiosanji Navala v. State of Maharashtra, 1979 Cri. L.J. 403 (Bom.)
6. S.W. Mohammed v. State of Maharashtra,
7. Jailal v. Delhi Administration,
8. Shanti Devi v. State,
9. Dahyabhai Chhagaubhai Thakkar v. State of Gujrat,
10. U. Kannan v. State, .
8. Elaborating on the submission canvassed by him Mr. Shetye, thereafter drew our attention to another Division Bench Judgment of the Karnataka High Court, reported in 1983 Cri. Law Journal, page 619 in the case of Sanna Eranna v. State of Karnataka. This was a case where the accused had a previous history of insanity and in these circumstances, the learned Judges relying on the provisions of section 101 of the Evidence Act, held that the burden shifts to the prosecution to establish negatively that the accused was not of unsound mind when he committed the offence. The Court had occasion in this instance to consider the case law as laid down in the following decisions :
Oyami Ayatu v. State of M.P., S.W. Mohammed v. State of Maharashtra, Ratanlal v. State of M.P., (1971 All. L.J. 1251), Bhikari v. State of U.P., .
9. As regards the duty cast on the prosecution to place before the Court all such material that it come across in the course of investigation which may support the view that there is a doubt with regard to the sanity of the person when he committed the act, Mr. Shetye placed reliance on a Division Bench Judgment of the Kerala High Court, reported in 1986 Cri. L.J., page 271 in the case of Kuttappan v. State of Kerala. The Division Bench upheld this proposition after examining the case law as enunciated in the following decisions :
State of M.P. v. Ahmadulla, In sum and substance therefore what was contended by Mr. Shetye was that even if in the present case the defence has not in terms discharged its burden to establish that the accused was perhaps insane or in other words incapable of knowing the consequences of her acts at the time of the commission of the incident, that nevertheless if the prosecuting authorities did come across a record of insanity and if the record also indicated that this condition prevailed even after the date when the alleged offence had been committed that it was essential for the prosecuting authorities to have placed all that material before the Court, so that a fair assessment could have been done for the purpose of establishing as to whether at all the accused can be said to have been of sound mind on the date when she committed the offence.
10. As against this argument, the learned A.P.P. has canvassed the well settled proposition of law that when an exception is pleaded the onus of establishing that the accused is covered by that exception shifts to the defence. He contended that there has not been any substantial challenge to the prosecution evidence and that even the defence evidence merely states that the accused was in the Mental Hospital between 1983 to 1984 and that she was in the hospital for about a year under similar circumstances after the commission of the offence. Mr. Mirza, the learned A.P.P. emphasizes the point that if the exception is to be invoked under section 84 of the Indian Penal Code, that it is a requirement of law that the accused must establish legal insanity on the date when the offence was committed. If at all she is to get the benefit of the exception and the defence has not succeeded in establishing that factor in the present appeal.
11. A Division Bench of this Court in the decision reported in 1979 Cri. Law Journal, page 403, in the case of Keshaorao Bhiosanji Navala v. State of Maharashtra, considered the plea of unsoundness of mind and held that having regard to the requirement of law this burden must be discharged completely by the accused and in the absence of the defence succeeding in that exercise, that the plea was liable to be rejected. The Division Bench did refer to a situation whereby the accused may have behaved strangely or in a very unusual eccentric or inhuman manner but that this would not be sufficient for invocation of the exception. The Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, , had occasion to consider the ingredients of section 84 of the Indian Penal Code and to hold that even though the burden lay on the defence, where an exception was pleaded, that the Court would come to the assistance of the accused if a reasonable doubt was cast from the record regarding the state of mind of the accused at the time when the offence was committed. In these circumstances, Mr. Mirza submitted that the medical history of the present appellant would not justify the conclusion that she was of unsound mind on the date when the offence was committed and he relied on the fact that the evidence itself indicates that she was capable of responding to treatment. Even though she had spent over a year in the Mental Hospital in the year 1983, the doctors after treating her and after keeping her under observation were satisfied that she was completely cured which is one of the necessary requirements for discharge and it was only in these circumstances that she was released. The learned A.P.P. emphasizes that it may be that the accused had a relapse after the commission of the offence but that her confession to P.Ws. 6 and 7 very clearly indicated that she was capable of distinguishing between right and wrong. Her statement indicated that she knew what it meant to take life and under these circumstances, the conviction was valid and fully justified.
12. The issue canvassed before us as indicated at the commencement of this judgment does not center point the applicability of section 84 alone. Even as far as that is concerned, we do need to record that having regard to the medical history of this particular accused as has been brought on record by Dr. Kulkarni, who was examined as defence witness indicates that she was mentally unsound and was sufficiently serious to have not only been committed to the Mental Hospital but to have been retained there for over a year. We have reproduced earlier the salient part of the evidence of Dr. Kulkarni wherein he has very clearly indicated that post-partum psychosis which occurs after delivery is due to changes in the brain and in the body. We need to add to this factor the other evidence that has come on record namely the poverty condition in which the accused was placed adding possibly the aspects of hunger and desperation and the horrifying behavior of the accused who was addicted to alcohol and was also given to violence. It is in these circumstances that to our mind the exception under section 84 in the present case would be justified. The learned trial Judge has not unfortunately given sufficient thought to this aspect of the matter and in our considered view after taking into account all the factors both legal and medical, the accused would be entitled to claim the benefit of that exception.
13. The added circumstance in favour of the accused is the plea canvassed with regard to her behavior, by her learned Counsel, namely the fact that it was the definite duty of the prosecuting authorities to have placed before the Court all material relevant to her medical history in relation to the insanity and to have afforded her the appropriate treatment for this and to have placed all those records in relation to the treatment afforded to the accused at the post-offence stage before the trial Court. The right to a fair trial necessarily implies that this vital material be placed before the trial Court and the present case is a classic instance where for want of that material having been brought before the Court, almost by default, the accused was wrongly convicted. It was fortunate that the learned Counsel tried to salvage the position by leading defence evidence but in our considered view the prosecution has failed in its duty as far as the aforesaid principles are concerned in having with-held from the trial Court this material of crucial importance. We have already discussed the case law in this regard and it must be held that the duty of the prosecution does not end merely in expounding the prosecution evidence and trying to establish that the ingredients of the law are satisfied but if there is corresponding material that has emerged in the course of investigation that would otherwise justify the case being brought under one of exceptions, the prosecution cannot be pardoned for having kept that material back from the Court. As indicated by us earlier, this case has thrown up these rather unusual features which in our considered view do require to be decided in favour of the appellant. Having regard to this situation the appeal is liable to be allowed. The conviction and sentence awarded to the appellant by the trial Court are set aside.
14. This is a case in which the conviction awarded to the accused-appellant is set aside, principally and only on the ground of the mental infirmity from which she is suffering. We have taken cognizance of her condition in life, the strata of society from where she comes and the position in which she would be placed as a result of the conviction being set aside. We have also taken serious note of the fact that this is the second occasion on which she has resorted to violence resulting in the death of her own child. Her learned Counsel Mr. Shetye has advanced an impassioned plea that the Court should totally disregard the evidence which alleges that the accused had killed her infant. We are unable to discard that evidence because it is sufficient and reliable and it is principally because of that evidence that this is a case in which it is necessary for us to pass special directions which are essential in the interest of not only the appellant but also of society at large. It is directed that the conviction is set aside. The appellant shall however be detained in an appropriate mental hospital, she shall be kept under observation and after all necessary treatment as her condition does require, her case history shall be taken into account and above all the authorities concerned, will seriously examine the question as to whether even if the appellant-accused shows signs of recovery, whether she would be in a position to be accepted and to live safely in the society from which she hails or whether as unfortunately happened, there would be a relapse. Unless the authorities are more than satisfied that the condition of the appellant has reached such a stage that she could permanently and safely be accepted back in the society, she shall continue to be retained in the mental hospital and looked after there.
15. Before parting with this appeal we need to observe that the facts of this case are undoubtedly unique but they have focused attention on a very important issue namely the after care of a criminal who comes out of jail which subject has hitherto gone almost totally by default. Undoubtedly, in the case of mentally ill persons, the Criminal Procedure Code has made some provision, but Courts and Society, will have to seriously address themselves to this question in numerous other instances also. This issue has been a matter of much concern to sociologists because the released criminal comes out of jail not only with a stigma but with several other undesirable handicaps particularly the influences and associations to which the person has been exposed while in jail. Over a period of time circumstances have changed in the outside world of which the individual once was part, the family or the background from which he had come out or even in the case of persons who unfortunately possess neither of these, the question of re-acceptance poses major hurdles. It would, therefore, be worthwhile for the Government to seriously look into this question, as experience has unfortunately shown that the process of dispensing justice ends at the Courts and by passes consideration of the aspect of rehabilitation which society is supposed to provide, often times leaving the criminal in a position where he is thrown back straight into a life of further crime. We, therefore, recommend that serious thought be given to these all important questions. The Registrar shall forward a copy of this judgment to the Law Secretary State of Maharashtra, the Union Law Secretary and to the Secretary, Bar Council of India, New Delhi, as also to the Secretary Law Commission so that serious thought be afforded to this issue, and appropriate provision be made thereof.