Karnataka High Court
Smt. Jayashree W/O. Bahubali Alase vs The State Of Karnataka on 27 September, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2024:KHC-D:14140-DB
CRL.A No. 100493 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL NO. 100493 OF 2023 (C)
BETWEEN:
SMT. JAYASHREE W/O. BAHUBALI ALASE
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. SHEDABAL, TALUK. ATHANI,
DIST. BELAGAVI-591315.
...APPELLANT
(BY SRI. GANAPATI M. BHAT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS CIRCLE POLICE INSPECTOR,
ATHANI CIRCLE,
Digitally signed
R/BY STATE PUBLIC PROSECUTOR,
by VINAYAKA B V
Location: HIGH
HIGH COURT DHARWAD BENCH BUILDING,
COURT OF
KARNATAKA
DHARWAD-580011.
DHARWAD
BENCH ...RESPONDENT
DHARWAD
Date: 2024.10.01
15:46:38 +0530
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CRPC
SEEKING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 14.03.2023
AND SENTENCED DATED 16.03.2023 IN SESSIONS CASE NO.
339/2019 PASSED BY THE COURT OF VII ADDL. SESSIONS
JUDGE, BELAGAVI SITTING AT CHIKKODI FOR AN OFFENCES
PUNISHABLE UNDER SECTION 302 OF IPC AND ACQUIT THE
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CRL.A No. 100493 of 2023
APPELLANT/ACCUSED FOR CHARGES LEVELED AGAINST
HER.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the judgment of conviction and order of sentence in S.C.No.339/2019 dated 14.03.2023 passed by the VII Additional Sessions Judge, Belagavi, sitting at Chikodi (for short 'the Trial Court'), the accused is before this Court in appeal.
Facts:
2. The factual matrix relevant for the purposes of this appeal is as below:
The Kagawad Police registered a case in Crime No.204/2018 for the offence punishable under Section 302 of IPC on the basis of the complaint filed by Raju Tatyasab Alase (PW1) wherein it was stated that he is a resident of -3- NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 Shedabal of Kagawad Taluk; his wife was suffering from certain disease for which she had undergone operation at Miraj; on 24.08.2018, the complainant and his wife had been to Miraj for treatment. On that day, his son Kartik aged
2 years 5 months, daughter aged 4 years, father-Tatyasab and mother-Malu were in house. The accused-appellant and her husband-Bahubali were residing in the house situated in front of the house of the complainant along with their two daughters. Since the accused did not have any son, she was often taking the son of the complainant to her house and had developed acquaintance. On 24.08.2018, at about 5.00 p.m., the complainant-PW1 received a phone call from his uncle-Annappa stating that the accused had taken away the son of the complainant to her house and had drowned him in a barrel filled with water and had committed his murder. Immediately, PW1-Raju Tatyasab Alase and his wife came back to Shedabal and found that their son-Kartik had died. On enquiry, he came to know that while Kartik was sleeping in the front room of their house and other member of the family were in kitchen for having tea, they found that the -4- NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 child Kartik was missing and even after search, he could not be found. When the accused was asked about Kartik, she did not reply anything, but latched the door of her house and went away. Then the husband of the accused i.e. Bahubali came and he opened the door and after searching, he found the child in the barrel and the child had died. However, they took the body of the child to Matru Seva Hospital where the cause for death of the child due to asphyxia was confirmed by the doctors. Therefore, it was alleged that the accused-Jayashree had developed jealousy for having not begotten a son and as such, she took the deceased-Kartik to her house and by drowning him in the barrel had committed the murder.
The Investigation:
3. The complaint was registered at about 11.15 a.m. by PSI of Kagawad police station (PW12) and further investigation was taken up by the Police Inspector (PW15). He conducted the inquest of the dead body of the deceased in the presence of PW9-Basappa and CW3-Manjanagouda as per Ex.P10. He also recorded the statements of the CW6 and -5- NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 CW13 and seized the clothes of the deceased under mahazar as per Ex.P4 in the presence of PW2-Nabiraj and CW5- Mahadev. He also conducted the spot mahazar as per Ex.P5. He instructed his staff to search for the accused, who was secured on 27.08.2018, and she was sent for medical examination. At the instance of the medical officer, she was referred for further examination to Civil Hospital, which is also known as Belgaum Institute of Medical Sciences (BIMS hospital), Belagavi. The accused was admitted to BIMS hospital and on 22.11.2018, after a formal medical examination at Government Hospital, Athani, she was arrested and remanded to judicial custody. The report of the BIMS hospital was secured on 28.09.2018 and thereafter it appears that she was treated at DIMHANS (Dharwad Institute of Mental Health and Neurosciences) Dharwad. The medical reports of both BIMS and DIMHANS are at Ex.P8 and Ex.P20. On completion of the investigation, he found that there is no material against the accused to show that she had committed the offence of murder while she was capable of understanding what she was doing and since the -6- NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 accused was suffering from paranoid schizophrenia, he filed 'B' summary report. The learned Magistrate did not accept the 'B' summary report but he took cognizance of the offence punishable under section 302 of IPC finding sufficient material for the said offence and then committed the case to the Sessions Court, Belagavi, sitting at Chikodi.
4. The learned Sessions Judge, finding that the accused was capable of understanding the trial and that she is fit to stand for the trial, framed charges for the offence under Section 302 of IPC. The accused pleaded not guilty and claimed to be tried. As such, trial was ordered. During the trial, the accused could not engage a counsel on her own and therefore, a Legal Aid Defence Counsel was appointed.
5. In order to bring home the guilt of the accused, the prosecution has examined 17 witnesses as PW1 to PW17 and Ex.P1 to Ex.P23 and M.O.1 to 3 were marked in the evidence. After recording the statement of the accused under Section 313 of Cr.P.C., the accused chosen to lead defence evidence and Dr.Saraswati N, Medical Superintendent of DIMHANS was examined as DW1. After hearing the -7- NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 arguments by both the sides, the Sessions Court came to the conclusion that the accused has committed offence under Section 302 of IPC by rejecting the defence of the accused that at the time of the incident she was suffering from paranoid schizophrenia, which is a mental disorder. Holding so, the learned Sessions Judge sentenced the accused to imprisonment for life and to pay a fine of Rs.5,000/- with a default sentence of two months simple imprisonment.
6. It is this judgment of the learned Sessions Judge, which is impugned in this appeal by the accused. It is needless to say that the appeal has been preferred through legal aid facility under the High Court Legal Services Committee.
7. On admitting the appeal, the learned Additional SPP Sri M B Gundawade appeared for the respondent-State. The Trial Court records have been secured and the submissions by the learned counsel Sri Ganapathi M Bhat and the Additional SPP Sri. M B Gundawade were heard. -8-
NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 Arguments:
8. The learned counsel appearing for the accused, Sri Ganapathi M Bhat, would submit that the investigating officer had rightly come to the conclusion that the accused was incapable of understanding her own actions when the incident had taken place. He submits that the neighbours as well as the husband of the accused had disclosed before the investigating officer that the accused was suffering from paranoid schizophrenia and she had taken treatment from 2013 at DIMHANS. On three occasions, she had been admitted to DIMHANS for the treatment of the said disease and only if she takes medicines daily, she would be fit enough as a normal person but in case, if she does not take medicines prescribed, she becomes abnormal and incapable of understanding her own actions. This conclusion of Investigating Officer was not accepted by the learned Magistrate and the trial Court took cognizance and matter was committed to the Sessions Court. He points out that the Sessions Court also did not bestow its attention to medical records in a proper way and had only considered the fact -9- NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 that when she was in judicial custody, she was given medicines regularly and as such she was fit for trial.
9. The learned counsel Sri. Ganapathi M Bhat would also point out that the testimony of PW6- Dr.P.S.Sonalkar, PW7-Dr.Chandrashekhar T.R., PW17- Dr.Rajendra Katti coupled with DW1-Dr.Saraswati N., would clinchingly show that the accused is suffering from paranoid schizophrenia and if she stops taking medicines, she would behave abnormal and would not be in a position to understand her own actions. The testimonies of these medical officers clearly establish the mental illness suffered by the accused and therefore, there cannot be any doubt about such mental illness. He further submits that the testimony of the neighbours as well as other witnesses would clearly indicate that they had given statement before the investigating officer that they came to know from the husband of the accused-Bahubali that the accused had not taken medicines for about 2-3 days prior to the incident. Therefore, as on the date of the incident, she was suffering from schizophrenia and her behaviors were abnormal. When
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 family members of PW1 had questioned the accused as to whether she had seen deceased-Kartik, she did not reply and had gone away. Therefore, he points out that there is ample material to establish that as on the date of the incident, she was suffering from mental illness and therefore, she could not have been convicted by the Trial Court. Hence, he submits that the defence has sufficiently probabilised the requirement of Section 84 of IPC and as such, the impugned judgment is not sustainable in law.
10. His second prong of argument is that, none had seen the accused drowning the deceased-Kartik into the barrel filled with water in her house. There are no recoveries made from the accused and therefore, there is no evidence to show that she had committed the murder of the deceased. Obviously, there is no motive for committing the murder and the allegation of jealousy that she was not having a son, lacks sufficient gravity and any previous instances in that regard. Therefore, he contends that when there are no eyewitnesses, the Trial Court could not have convicted the
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 appellant. Hence, he submits that the impugned judgment is not sustainable in law.
11. Per contra, the learned Additional SPP would submit that the requirement of law under Section 84 of IPC is that the accused has to establish that she was is incapable of knowing the nature of the act, or that she is doing what is either wrong or contrary to law at the time of occurrence of the incident. The fact that she had a bout of such illness at the time of the incident is essential to take shelter under Section 84 of the IPC. It is pointed out that the learned Magistrate or the learned Sessions Judge, who held the trial did not find any need for enquiry to be held while framing the charge. Therefore, it is submitted that no fault can be found with the trial held by the Trial Court. He points out that the testimony of the neighbours including the family members of the PW1 clinchingly establish that they had seen the accused running away from her house after latching the doors and her clothes were wet with water. Therefore, the evidence points to the offence committed by the accused and in the absence of any explanation by her,
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 all the circumstances establish the guilt of the accused. Therefore, he submits that the testimony of the medical officers also being clear in this regard, such evidence cannot inure to the benefit of the accused. None of the witnesses say that as on the date of the incident the accused had stopped taking medicines. The best evidence that could have been led by the accused is of her husband and in the absence of such evidence, the arguments canvassed by the learned counsel for the accused cannot be accepted.
12. In the light of the above submissions the points that arise for our consideration are:
i) Whether the accused has committed culpable homicide? If so, whether it is amounting to murder or not amounting to murder?
ii) Whether the accused was suffering from a mental disorder i.e. paranoid schizophrenia, which rendered her incapable of understanding her acts consequently establishing defence under Section 84 of the IPC?
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13. We have come to the conclusion that the prosecution has proved the point No.1 and the defence has also proved the point No.2 for following reasons.
14. The prosecution relies upon the testimony of the complainant-PW1 (Raju Tatyasab Alase), his father-PW3 (Tatyasab Alase), his mother-PW4 (Mala Tatyasab Alase), his brother-PW5 (Sanju Tatyasab Alase) and also his mother-in- law PW10-(Nagavva).
15. The PW2-Nabiraj happens to be the pancha to the spot mahazar under which the barrel (in which the body of deceased-Kartik was drowned) was seized. The clothes of the deceased boy were also seized under the mahazar as per Ex.P4, which are at M.O.2 and M.O.3. Incidentally, he also happens to be the scribe of the complaint, which is at Ex.P1, written by him at the instance of the PW1.
16. PW8-Dr.Shrishail Sidagouda Patil happens to the medical officer ,who conducted the postmortem on the body of the deceased-Kartik and gave a report as per Ex.P9.
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17. PW9-Basappa Nagappa Timmenahalli happens to the pancha to the inquest mahazar, which is at Ex.P10. PW11-P.D.Chavan, PW13-J.A.Sonawane and PW14- Siddappa Irappa Savalagi were the police officials who searched for the accused but were unable to trace her.
18. PW12-Sameer Mulla happens to be the Station House Officer who received the complaint as per Ex.P1 and registered the FIR. The PW15-Shekharappa is the investigating officer as noted supra. The PW6- Dr.P.S.Sonalkar and PW7-Dr.Chandrashekhar T.R., are the medical officers, who had examined the accused at the initial stage and PW17-Dr.Rajendra Katti happens to be the medical officer of BIMS Hospital, Belagavi, who examined the accused on 03.08.2019 and gave a report that the accused is fit to face the trial and such report is at Ex.P23. The Evidence and Analysis:
19. In order to prove that the accused and the accused alone had committed culpable homicide of the deceased-Kartik, the prosecution relies upon the testimony
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 of the PW1, PW3, PW4, PW5 and PW10. In order to prove that the death of the deceased-Kartik is homicidal death, apart from relying upon the testimony of the above witnesses, it also relies upon the testimony of PW8- Dr.Shrishail, who conducted the postmortem on the body of the deceased-Kartik and PW9, who was the pancha to the inquest panchanama at Ex.P10.
20. The perusal of Ex.P9, which is the postmortem report prepared by the PW8-Dr.Shrishail discloses that there were no external injuries on the body of the deceased-Kartik, but the larynx, tracheae, lungs were filled with water and he came to the conclusion that the boy had died due to asphyxia on account of drowning into water. The inquest mahazar, which is at Ex.P10 would also show that the body of the deceased-Kartik was found in the barrel filled with water. The panchas to the inquest mahazar suspected that the boy had been forcibly drown into the barrel containing water and had died and as such, they recommended for autopsy.
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21. On careful perusal of the testimony of PW8- Dr.Shrishail and PW9-pancha to the inquest mahazar, it is clear that the death was due to drowning as the lungs, larynx, esophagus etc., were filled with water. On perusal of spot mahazar (Ex.P5) also the description of M.O.1 would show that a boy aged about 2 ½ years could not have climbed into the barrel on his own and as such the death has to be concluded to be a homicidal death.
22. PW3, PW4 and PW10 are vital witnesses for the prosecution and in order to prove the involvement of the accused, the testimony of PW1 and PW5 though hearsay, would be relevant insofar as the conduct of the accused is concerned.
23. As noted supra, PW1 has deposed in terms of the complaint, which he has lodged as per Ex.P1. He came to the spot along with his wife only after being informed that his son-Kartik had died. PW3-Tatyasab is aged about 86 years and he deposed that the house of the accused is situated in front of his house and there is 3 ft passage in between their houses. On the date of the incident, he and
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 his wife were having tea inside their house in kitchen and PW1 and his wife had been to Miraj. He states that the accused came and took the deceased-Kartik and drowned him into barrel filled with water. Obviously, he had not seen the incident as can be seen from his further testimony. He states that when he came out of the kitchen after having tea, the boy-Kartik was not there and even after search by his wife, he was not found. He came to know that his wife PW3 had seen the accused taking away the deceased-Kartik. Then the husband of the accused was called by CW13- Shanakka, who is the neighbor, who could not be examined due to her death and when the husband of the accused came to house and opened the door, they found the body of the boy in the barrel filled with water. Then they took out the dead body of the deceased from the barrel. PW3 also states that the husband of the accused had taken the body of the deceased to the hospital where he was declared as dead and then the dead body of the deceased was brought back and kept in front of the house by the husband of the
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 accused. He alleges that the deceased has committed the offence out of jealousy since she did not have a male child.
24. In the cross-examination, it is elicited that the incident had taken place at around 4.00 p.m., and the sole defence that was suggested to the PW3 is regarding the mental condition of the accused. He denies that the accused was suffering from mental illness and was being treated at Dharwad and some other places. He denies his statement as per Ex.D2 and D3.
25. The PW4-Mala happens to be the wife of PW3 and mother of PW1. Her testimony is on the similar lines as stated by PW3. She further states that when she saw the accused running away from her house, her saree was drenched with water. In the cross-examination, she has reiterated her say that the saree of the accused was wet. She denied her statement as per Ex.D1 before the police which is to the effect that the accused was suffering from schizophrenia and was being treated at Dharwad and other places. Incidentally, Ex.D1 also mentions that for last 2-3
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 days the accused had not taken her medicines and therefore, her behavior had changed.
26. PW10, who is the mother-in-law of PW1 states that she had been to the house of PW1 since her daughter (the wife of PW1) was suffering from cancer and was being treated at Miraj. She states that when the PW1 and his wife had been to Miraj, she was in the house of PW3 and PW4 and when they were having tea, the deceased-Kartik was sleeping in the front room of the house and accused came there and took away the boy. She states that the accused used to take the deceased boy everyday with affection and therefore, they did not bother but when the deceased boy did not return, they went to the house of the accused and found that the door was closed and accused went away. The deceased-Kartik was not traced and then the husband of the accused came and found the body of the deceased in the barrel. She alleged that the accused committed the offence out of jealousy. In the cross-examination, she denies that the accused was suffering from mental illness and she was not talking to anybody. In her cross-examination, she
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 reiterated that the accused had taken the boy to her house on the date of the incident. She also states that the accused did not talk to her and went away from the house. She denies her statement as per Ex.D6.
27. Thus, the testimony of PW3, PW4 and PW10 clinchingly shows that the accused had taken the deceased boy to her house, couple of hours prior to deceased boy was found dead. The evidence also shows that after search for the deceased boy by the efforts of PW3, PW4 and PW10 being futile, one of the neighbours called the husband of the accused. When the husband of the accused came and opened the door, they found the dead body of deceased- Kartik in the barrel inside the house of the accused. This evidence on record is clinching evidence. Though nobody had seen the accused drowning the deceased into the barrel, the evidence of these witnesses clearly show that it was the accused, who had taken the boy to her house and by closing the door after the incident, she had went away without talking to anybody. The conduct of accused not talking to anybody despite they were searching for the deceased boy
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 would clearly show that she had committed the offence. Thus, the testimony of these witnesses insofar as involvement of the accused in commission of the offence has not been shaken, despite an effective cross examination by the Legal Aid Defence Counsel.
28. The witnesses have clearly stated that the husband of the accused came to the house and went inside and then he found the body of the deceased in the barrel. This aspect having not been controverted by any other evidence, it holds the field and as such, the prosecution has established that it was the accused who alone could have committed the homicidal death of the deceased-Kartik. It is pertinent to note that the acquaintance of the accused with deceased boy is not in dispute. They being neighbours, the accused used to take the deceased boy to her house quite often since she had no male child. Therefore, the fact that the accused and accused alone could have committed the said offence which happened inside her house is not explained by the accused by examining her husband in the matter. Therefore, we come to the conclusion that the
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 prosecution has proved that the accused and accused alone has committed the culpable homicide of the deceased- Kartik.
29. The fact that as to whether the culpable homicide amounts to murder or not depends upon the intention and knowledge of the accused. Obviously, this aspect would squarely depend upon the point No.2 raised by us. If the accused is shown to be suffering from such mental illness, which would render her incapable of understanding what she was doing and unable to understand that the acts done by her are prohibited by any law or consequences thereof, it would not be possible to impute the intention and knowledge about the homicide that is committed. Therefore, the question whether the culpable homicide committed by the accused would amount to murder or not amounting to murder would squarely depend upon the point No.2 raised by us. It would suffice to hold that the evidence clearly and cogently establish that the accused has committed the offence.
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30. Coming to point No.2 as to whether the accused was suffering from mental disorder i.e. paranoid schizophrenia, the testimony of PW6, PW7, PW17 and DW1 would be of vital importance. Before considering the testimony of these witnesses, it would be relevant to note that the Hon'ble Apex Court in the case of Bapu v. State of Rajasthan1 had an occasion to consider the defence raised under Section 84 of the IPC. The plea of unsoundness of mind, when raised by the defence, falls under section 84 of the IPC. The burden of proving the fact that the accused had mental disability or disorder is squarely on the accused and such fact has to be proved not by the strict proof of evidence but by preponderance of probability. The second requirement would be that the accused should be incapable of understanding her act when the incident took place. In paragraph 12 and 13 of the judgment cited supra, the Hon'ble Apex Court has held as under:
"12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a 1 (2007) 8 SCC 66
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 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 those 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 NS 847 (HL)]. 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 not 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.
13. 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
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 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, or that his behaviour was queer, cannot be sufficient to attract the application of this section."
31. Further, in the case of State of Punjab v. Mohinder Singh2 it is observed as under:
"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 2 (1983) 2 SCC 274
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 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."
32. It is pertinent to note that in both the above matters, the accused was suffering from Schizophrenia. It is one of such disorder, under which the person would not be capable of understanding what he/she is doing and would be under delusion of various types and inability to control his/her acts is one of the symptom.
33. In a recent judgment, the Hon'ble Apex Court in the case of Prakash Nayi v. State of Goa3 observed as below:
3 (2023) 5 SCC 673
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 "3. Section 84 of the Penal Code, 1860:
"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 he is doing what is either wrong or contrary to law."
Section 84 IPC recognises only an act which could not be termed as an offence. It starts with the words "nothing is an offence". The said words are a clear indication of the intendment behind this laudable provision. Such an act shall emanate from an unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission.
4. xxxxx.
5. The aforesaid provision is founded on the maxim, actus non reum facit nisi mens sit rea i.e. an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention. A person of an unsound mind, who is incapable of knowing the consequence of an act, does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment. This act cannot be termed as a mental rebellion constituting a deviant behaviour leading to a crime against society. He stands as a victim in need of help,
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it."
Regarding Schizophrenia it is stated as below:
"19. Now, we shall come to the mental illness caused by schizophrenia. We do not wish to go into the said issue as it being one within the exclusive knowledge of the experts, except to quote the relevant text available:
19.1. Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, p. 922:
"(ii) Schizophrenia.--Kraepelin (Emil Kraepelin, German psychiatrist.), in 1896, named this disease as "dementia praecox". In 1911, Eugen Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.) introduced the term "schizophrenia" which literally means disintegration of mind. The term dementia praecox was changed because it implied that the disease always ended in dementia, which it did not.
The term praecox meant that the disease developed at the time of puberty or adolescence, but in many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people."
19.2. Elizabeth A. Martin (2007), Oxford Concise Medical Dictionary (7th Edn.), p. 642:
"Schizophrenia n. a severe *mental illness characterised by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Positive symptoms, such as *delusions and *hallucinations (especially of voices), are common, and any *Schneiderian first-rank symptoms are particularly indicative of the
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 illness. Negative symptoms include social withdrawal, impairment of ego boundaries, and loss of energy and initiative. Schizophrenia is diagnosed only if symptoms persist for at least one month. The illness can spontaneously remit, run a course with infrequent or frequent relapses, or become chronic. The prognosis has improved with *anti-psychotic drugs and with vigorous psychological and social management and rehabilitation. The many causes include genetic factors, environmental stress, and possibly illicit drug use."
19.3. American Psychiatric Association 2013, Diagnostic and Statistical Manual of Mental Disorders : DSM-5, 5th Edn, American Psychiatric Association, Washington DC, p. 87:
"Schizophrenia spectrum and other psychotic disorders include schizophrenia, other psychotic disorders, and schizotypal (personality) disorder. They are defined by abnormalities in one or more of the following five domains : delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms."
20. We thus, appreciate that schizophrenia is certainly an overpowering mental illness."
34. In this case also, it was Schizophrenia and thus, there cannot be any doubt that Schizophrenia is one of such mental disorder where a person would not be knowing that what he/she is doing.
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35. In the light of the above propositions let us examine the evidence on record. The accused was first intercepted by the investigating officer on 27.08.2018. On the same day, she was produced before PW6- Dr.P.S.Sonalkar, who was the medical officer at Community Health Centre, Kagawad. He states in evidence before the Trial Court that when the accused was examined, he came to know that she was taking treatment from DIMHANS, Dharwad for her mental illness. On examining her, he also got suspicious that the accused was suffering from mental illness. Therefore, he referred the case to expert at Civil Hospital (BIMS), Belagavi, , under referral letter at Ex.P6. Ex.P6 clearly mentions that for psychiatric treatment, the accused was referred to the said hospital. His detailed examination, which would be found in Ex.P7 shows that the accused was taking treatment from the Department of Psychiatry, DIMHANS, Dharwad since 2013 till February- 2018. He mentioned that the patient was moderately built, nourished and 'disoriented'. This would indicate that on 27.08.2015, there were symptoms of schizophrenia.
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023
36. Thereafter, at BIMS Hospital, the accused was examined by PW7-Dr.Chandrashekhar T.R. He states that on asking the husband of the accused, he was informed that the accused would not have food, she would not sleep and use to roam by abusing others, and she used to get suspicious on minor things and would get enraged by minor things. PW7 also states that at the time of examining the accused, when he questioned the accused, she used to repeat the same things several times and she told that she is having delusions that somebody is talking in her ear. He states that symptoms were of schizophrenia and therefore, he gave a report as per Ex.P8. In the cross-examination, it is elicited that the continuous treatment is necessary for the accused and if the medication is stopped, the symptoms of schizophrenia would erupt and become severe.
37. A perusal of the records would reveal that on the basis of the report by PW6 and PW7, the investigating officer came to the conclusion that the accused is suffering from schizophrenia and she was not taking medicines for 2-3 days prior to the incident and as such, she was not capable
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 of understanding her actions. Therefore, he had submitted 'B' summary report. However the learned Magistrate did not accept the 'B' summary report but took cognizance of the offence by rejecting the 'B' report4. It was then, the accused was arrested and produced before PW17. The testimony of PW17-Dr.Rajendra Katti shows that he was working as a psychiatrist at BIMS Hospital and on 03.08.2019 as per the direction of the learned Magistrate, the accused was produced before him and on examining her, she told that she is suffering from mental illness but recently she is having bouts with gaps. The police did not inform anything about the history of the accused. His testimony shows that the accused had told about the symptoms of schizophrenia but when she was examined by him, she was fit but had depression since she had been in jail. He also states that when he asked about the murder, she had stated that she did not understand when she committed the offence, but now she has repentance. Much has been elicited about the nature of schizophrenia and in the cross-examination, he 4 It would suffice to note that the order rejecting the 'B' report is sans any reasons.
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 admits that if the medication is stopped, then a person would become abnormal and the behavior would change. He also states that there is every possibility that such patient suffering from schizophrenia would cause harm to their children, and other children as well. He also states that suicidal tendency would be increased.
38. The testimony of the DW1-Dr.Saraswati N would show that she is a medical superintendent at DIMHANS, Dharwad and the accused was taking treatment at DIMHANS since 27.11.2013. On three occasions i.e. from 01.12.2013 to 16.12.2013, from 28.04.2016 to 13.05.2016 and from 22.01.2018 to 30.01.2018 the accused had taken treatment as an inpatient. She also states that schizophrenia is a chronic ailment, which requires continuous medication and if the medication is stopped, the patient's behavior would become abnormal. However, in stray sentence, she denies that if such patient stops medication, he/she would not understand what he/she is doing.
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023
39. The medical records are produced at Ex.P20. It is relevant to note that the accused was suffering from acute psychiatric disorder and the case-sheet shows that there was continuous treatment prescribed to the accused for the ailment of schizophrenia. The medical records undoubtedly show that she was suffering from schizophrenia and was advised for continuous medication.
40. We feel that it is necessary to observe that we had called details from the jail authorities and accordingly the jail authorities have also submitted a report, which would show that even during her detention in the jail, the accused was under treatment. The communication dated 02.09.2024 by the Jail Superintendent, Central Prison, Belagavi would indicate that she was treated for psychosis/schizophrenia on nine occasions between 30.11.2018 to 11.03.2024 and on all these occasions, the prescription included about seven tablets everyday. Thus, the overwhelming evidence on record would clearly establish that the accused is suffering from schizophrenia, which is a mental disorder where a person would not understand the
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 acts done by him/her. Evidently, when the accused was first examined by PW6, he felt that the behavior of the accused was abnormal and therefore, he referred the accused to PW7 at BIMS Belagavi. He diagnosed, the accused was suffering from schizophrenia and she was not capable of understanding the acts done by her. She was also treated at DIMHANS, Dharwad on several occasions and hardly about 8 months prior to the incident, she was admitted as an inpatient at Dharwad. The accused had confided with the medical officer i.e. PW17 that when the incident taken place she did not understand what she did and later she has repentance for doing such an act. This would indicate that as on the date of the incident, the accused was suffering from serious mental illness and she was incapable of understanding the acts done by her. Moreover, Ex.D1 to D6 would indicate that the witnesses has stated before IO that the the husband of the accused had stated that the accused had stopped taking medication 2-3 days prior to the incident.
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41. In the light of the above discussions, we are of the definite opinion that the accused was incapable of understanding the acts done by her and the defence under Section 84 of IPC has been sufficiently proved by the accused.
42. The Trial Court, has lost sight of the fact that the incident occurred on 24.08.2018 and the accused was arrested on 27.08.2018 she was still having symptoms of schizophrenia and also that the witnesses had stated before the Investigating Officer as per Ex.D1 to Ex.D6 wherein the husband of the accused had also informed that the accused was not taking medicines for about 2-3 days prior to the incident. Coupled with this, the PW17 states that a person suffering from schizophrenia would not take the medicine regularly. Therefore, from the available evidence on record, we come to the conclusion that the Trial Court erred in holding that the accused was mentally fit and she knew that she has committed the murder of the deceased-Kartik. It is pertinent to note that the accused used to take the deceased boy to her house quite often as stated by the prosecution
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 witnesses. She taking the deceased boy to her house was not a single incident. She continuously used to take the deceased boy to her house with fondness and had love and affection towards him. That cannot be termed to be a jealous act as stated by the prosecution witnesses. The incident had occurred only because the accused had stopped taking medicine for her mental illness, which resulted in abnormal behavior under which she could not understand the acts done by her. Therefore, the defence has sufficiently established the mental illness as required under Section 84 of the IPC.
43. By order dated 23.08.2024, we had directed the superintendent of Police, Belagavi to find out as to whether there are any institutions which would take care of the accused in case she is acquitted. Pursuant to the said order, the Superintendent of Police, Belagavi has submitted a report. In his report, he has informed that the State Home for Women, Shiradi Nagar, Hubli is one such institution where the accused may be kept. The letter issued by the Superintendent of State Home for Women, Hubli dated
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 30.08.2024 is also enclosed to his report, wherein it was stated that in case the accused is acquitted, she may be kept at State Home for Women at Hubli. It is also stated that the institution would provide for the stay, medical assistance and such other facilities.
44. The provisions of Section 334 of Cr.P.C., provided for the acquittal on the ground of unsoundness of mind and in case a person is acquitted on the ground of unsoundness of mind, the provisions of Section 335 of Cr.P.C., would apply. The provisions of Section 335 of Cr.P.C., reads as follows:
"335. Person acquitted on such ground to be detained in safe custody.--(1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,--
(a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or
(b) order such person to be delivered to any relative or friend of such person.
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 (2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub- section (1) otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912).
(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall--
(a) be properly taken care of and prevented from doing injury to himself or to any other person; (b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.
(4) The Magistrate or Court shall report to the State Government the action taken under sub- section (1)."
45. In the light of the above facts and circumstances, we deem it fit that the accused has to be acquitted under Section 334 of Cr.P.C., for the offence alleged against her. We have also recorded our finding as to whether the accused has committed the act or not. In the light of the above
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NC: 2024:KHC-D:14140-DB CRL.A No. 100493 of 2023 discussions, the point No.1 and 2 are answered in the affirmative and hence, we pass the following:
ORDER
i) The Appeal is allowed.
ii) The impugned judgment dated 14.03.2023 in S.C.No.339/2019 passed by the VII-
Additional Sessions Judge, Belagavi, sitting at Chikodi, is set aside.
iii) The accused-Jayashri Bahubali Alase is acquitted u/s 334 of Cr.P.C., for the offence u/s 302 of IPC.
iv) The accused is ordered to be placed at State Home for Women, Shirdi Nagar, Hubli, until further orders under Section 335 of Cr.P.C.
v) We direct the trial Court to act in terms of the provisions of Section 335 of Cr.P.C., as required under law regarding the detention of the accused.
Sd/-
(B.M.SHYAM PRASAD) JUDGE Sd/-
(C M JOSHI) JUDGE YAN, LIST NO.: 1 SL NO.: 16