Bombay High Court
Santosh Shridharrao ... vs The State Of Maharashtra on 6 September, 2017
Bench: T.V. Nalawade
Cri.Appeal No. 173/2001
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 173 OF 2001
Santosh s/o Shridharrao Bhatambrekar
Age 32 years, Occ. Contractorship,
R/o Indira Nagar,
District Latur ... APPELLANT
VERSUS
The State of Maharashtra
(Copy served through A.P.P.,
High Court of Bombay,
Bench at Aurangabad ... RESPONDENT
***
Shri N.S. Ghanekar, Advocate for appellant
Shri S.J. Salgare, A.P.P. for respondent/ State
***
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 2nd August, 2017.
Date of pronouncing judgment : 6th September, 2017.
JUDGMENT : (PER SUNIL K. KOTWAL, J.)
1. The appellant/ accused has directed this appeal
against the judgment and order dated 14/3/2001, passed by
Additional Sessions Judge, Latur in Sessions Case No.140/1999.
Cri.Appeal No. 173/2001
By the said judgment and order, learned Sessions Judge,
convicted the appellant for the offence under Section 302 of the
Indian Penal Code. For the offence punishable under Section
302 of the Indian Penal Code, he was sentenced to suffer life
imprisonment and to pay fine of Rs.2000/-. Accused was
acquitted of the offence punishable under Section 498-A of the
I.P.C. Against the order of acquittal, no appeal is preferred by
the State.
2. Prosecution case, briefly stated, relates to the death
of a woman in her house at the hands of her own husband,
claiming the plea of insanity under Section 84 of the Indian
Penal Code (in short, the I.P.C.). After marriage of accused with
the deceased Surekha on 11/12/1998, she used to reside at
Latur with the accused who was a diploma holder in Civil
Engineering, along with his unmarried sisters namely Vanita
Bhatambrekar and Anita Bhatambrekar. Deceased Surekha was
M.B.B.S. Degree holder Doctor and she used to work as Medical
Officer at Pangri, Taluka Barshi, District Solapur, and used to
commute daily from Pangri to Latur. Whenever Surekha had
visited to her parental house at Shivajinagar Uplai Road, Taluka
Barshi, she used to inform her parents that accused was
demanding amount of Rs.1 Lakh for his contract business and on
Cri.Appeal No. 173/2001
that count she was subjected to mental harassment. On
19/6/1999, at night, Surekha and accused slept together in their
bedroom and on next day morning i.e. on 20/6/1999, Surekha
was found dead. Initially, she was taken to private hospitals by
accused No.1 and his sister and at last, to Civil Hospital, Latur.
Medical Officer, Civil Hospital, Latur declared Surekha dead.
Inquest panchanama (Exh.38) was drawn and when her dead
body was referred to post mortem examination to Dr. Kalpana
Barmade (P.W.2), by submitting post mortem notes (Exh.29),
she opined that Surekha died due to asphyxia due to throttling.
On the same day, Shri Balkrishna Digambar Deshpande (P.W.1),
who is father of the deceased, lodged F.I.R. (Exh.15) against the
accused. Crime No.93/1999 was registered under Sections 302
and 498-A of the Indian Penal Code against the accused. During
the course of investigation, spot panchanama (Exh.34) was
drawn by P.S.I. Shankar Mali (P.W.8) and blood stained pillow
cover, lungi, shawl and one bed sheet came to be seized from
the bed room of the accused. After completion of investigation,
charge sheet was submitted in the Court of Judicial Magistrate,
First Class, Latur against the accused for the offence punishable
under Sections 302, 498-A of the Indian Penal Code.
3. Offence punishable under Section 302 of the I.P.C.
Cri.Appeal No. 173/2001
being exclusively triable by Court of Sessions, this case was
committed to Sessions Court, Latur.
4. Charge (Exh.1) was framed against the accused for
the offence punishable under Sections 302, 498-A of the I.P.C.
Accused pleaded not guilty and claimed trial.
5. Accused raised the defence of insanity under Section
84 of the I.P.C.
6. Prosecution examined total 8 prosecution witnesses.
Even defence has examined 4 defence witnesses. After
considering the oral and documentary evidence placed on record
by both the parties, the learned trial Court pleased to convict the
accused only under Section 302 of the I.P.C. He was acquitted
of the offence punishable under Section 498-A of the I.P.C.
Therefore this appeal arises.
7. Heard Shri N.S. Ghanekar, Advocate for the appellant
and Shri S.J. Salgare, A.P.P. for the State. The one and only
contention projected by learned counsel for the appellant/
accused is that, at the time of alleged incident, the accused was
suffering from 'paranoid schizophrenia' and hence, is entitled to
Cri.Appeal No. 173/2001
the benefit of exception under Section 84 of the I.P.C.
8. Before considering the above issue, we have to first
examine whether prosecution has established that accused
caused homicidal death of the deceased. In fact, during the
course of arguments, learned Advocate for the appellant has
fairly conceded that, homicidal death of the deceased at the
hands of accused is not disputed. Otherwise also, by examining
Vanita Bhatambrekar (P.W.7), who is sister of the accused,
prosecution has proved that on 19/6/1999, at night hours,
accused, deceased Surekha, Vanita Bhatambrekar, her sister
Anita Bhatambrekar had dinned together at their house at Latur.
After watching the T.V. programme for some time, accused and
Surekha went to their bedroom which was adjacent to the TV
room. Sisters of the accused watched the TV up to 12.00 to
12.30 a.m. and thereafter they slept in the TV room itself. In
the morning, Vanita (P.W.7) woke up at about 4.30 to 5.00 a.m.
and she saw that accused and Anita were talking with each other
in the passage of house. Accused told Vanita (P.W.7) that
Surekha had become unconscious. Thereafter, by autorickshaw
accused and his sisters took Surekha initially to private hospitals
and at last, to Civil Hospital, Latur, where she was declared
"dead". Police Station, Latur was informed and, therefore, A.S.I.
Cri.Appeal No. 173/2001
Patil rushed to the Civil Hospital, Latur and prepared inquest
panchanama (Exh.38). The dead body was referred for post
mortem examination. Dr. Kalpana (P.W.2) performed autopsy
examination of the dead body on 20/6/1999 in between 2.30
p.m. to 4.30 p.m. From the testimony of Dr. Kalpana (P.W.2), it
emerges that, she found: (1) abrasion with contusion on right
side of the neck, 3 cm. below mandibular margin, lateral to the
thyroid cartilage of size 1 x 0.5 cm.; (2) subcutaneous
haemorrhage underneath above injury, lateral to thyroid
cartilage. She also noticed bleeding through the oral cavity. On
internal examination, Dr. Kalpana (P.W.2) found that, all neck
veins engorged with cynotic blood, trachea, larynx mucosa were
congested and there was submucosal hamemorrhage in the
larynx. The brain was congested and the veins were engorged.
Dr. Kalpana (P.W.2) opined that the cause of death of deceased
Surekha was asphyxia due to throttling.
9. Dr. Kalpana was subjected to lengthy cross-
examination. In her cross-examination, the defence has
brought on record that, in case of throttling by hand, the marks
of finger violence are visible on both sides of the neck and there
would be finger marks of assault on the right and left side of
neck of the victim. However, this admission does not affect the
Cri.Appeal No. 173/2001
version of Dr. Kalpana (P.W.2) for the simple reason that, in
examination-in-chief itself, medical officer has pointed out
external injuries and corresponding internal injuries on the neck
of deceased. It has been tried to bring on record that, in case of
throttling, if force is applied, there would be fracture of hyoid
bones. In the case at hand, no fracture of hyoid bone is noticed.
However, fracture of hyoid bone is not condition precedent for
causing death by throttling. These are all probabilities in case of
throttling with force. It is not must that in every case of
throttling such signs must appear. On the other hand, while in
the case at hand, accused and deceased slept together in
bedroom and when in the next day morning deceased was found
dead due to throttling and when no explanation is coming forth
from accused, under Section 106 of the Evidence Act, only one
conclusion can be drawn that accused caused homicidal death of
deceased by throttling. Therefore, otherwise also, prosecution
has established beyond reasonable doubt that, in between
19/6/1999 and 20/6/1999 at night hours, accused caused
homicidal death of deceased by throttling her. The above
circumstances are also sufficient to hold that the homicidal
death of Surekha was caused by accused with intention to kill
the deceased. Though evidence placed on record by prosecution
regarding motive behind the murder of deceased is weak, in
Cri.Appeal No. 173/2001
view of above discussed clinching circumstantial evidence
available on record, the lack of proof and motive does not affect
the result of the prosecution case.
10. The one and only contention projected by learned
counsel for the appellant/ accused is that, at the time of
incident, the accused was suffering from paranoid schizophrenia
and hence, he is entitled to the benefit of exception under
Section 84 of the I.P.C. Shri Ghanekar, Advocate for the
appellant has placed reliance on the evidence of defence
witnesses. Dr. Laxmikant Shende (D.W.1), Dr. Satish Maniyar
(D.W.2), Dr. Ivan Nefto (D.W.3) and Dr. Liyakat Mujawar
(D.W.4).
11. Since the appellant has raised the plea of insanity,
seeking protection under Section 84 of the I.P.C., it is useful to
refer the same :
"Section 84 I.P.C.: 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."
Cri.Appeal No. 173/2001
12. The above Section makes it clear that a person, who
at the time of doing the act, by reason of unsoundness of mind,
commits anything, he is permitted to claim the above exception.
In other words, insanity or unsoundness of mind are the stages
when a person is incapable of knowing the nature of the act or
unable to understand what is wrong or right and must relate to
the period in which the offence has been committed.
13. It is also useful to refer Section 105 of the Evidence
Act, which reads as under :
"105. Burden of proving that case of accused
comes within exceptions:- When a person is
accused of any offence, the burden of proving the
existence of circumstances bringing the case
within any of the General Exceptions in the Indian
Penal Code (45 of 1860), or within any special
exception or provision contained in any other part
of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume
the absence of such circumstances."
14. The burden of proving an offence is always on
prosecution and never shifts, however, the existence of
circumstances, bringing the case within exception under Section
Cri.Appeal No. 173/2001
84 lies on the accused. Shri Ghanekar, Advocate for the
appellant/ accused heavily relied on the decision of Apex Court
in Shrikant Anandrao Bhosale Vs. State of Maharashtra,
[ (2002) 7 SCC 748 ], where Apex Court considered the
similar issue.
15. Learned A.P.P. for the State has placed reliance on
"Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat"
reported in [ (1964) 7 SCR 361 ]. In that case, Supreme
Court has held that, even if the accused was not able to
establish conclusively that he was insane at the time he
committed the offence, the evidence placed before the Court
may raise reasonable doubt in the mind of Court as regards one
or more ingredients of the offence including mens rea of the
accused and in that case, the Court would be entitled to acquit
the accused on the ground that the general burden of proof
resting on the prosecution was not discharged. The burden of
proof on the accused to prove insanity is no higher than that
which rest upon party to civil proceedings which, in other words,
means preponderance of probabilities.
16. The doctrine of burden in the context of the plea of
insanity may be stated in the following propositions :
Cri.Appeal No. 173/2001
(1) The prosecution must prove beyond reasonable doubt
that the accused had committed the offence with the
requisite mens rea; and the burden of proving that
always rests on the prosecution from the beginning to
the end of the trial.
(2) There is a rebuttable presumption that the accused was
not insane, when he committed the crime, in the sense
laid down by Section 84 of the Indian Penal Code : the
accused may rebut it by placing before the Court all the
relevant evidence - oral, documentary or circumstantial,
but the burden of proof upon him is no higher than that
rests upon a party to civil proceedings.
(3) Even if the accused was not able to establish
conclusively that he was insane at the time he
committed the offence, the evidence placed before the
Court by the accused or by the prosecution may raise a
reasonable doubt in the mind of the Court as regards
one or more of the ingredients of the offence, including
mens rea of the accused and in that case the Court
would be entitled to acquit the accused on the ground
that the general burden of proof resting on the
prosecution was not discharged.
Cri.Appeal No. 173/2001
17. In Mariappanan Vs. State of Tamil Nadu reported
in [ 2013 CRI.L.J. 334 (S.C.) ] Apex Court ruled that, benefit
of plea of insanity under Section 84 of I.P.C. is available only if
incapacity of person to understand nature of act exists at the
time of commission of offence. Similar view was also expressed
by this Court in Ravindra Govind Gawas Vs. The State of
Maharashtra reported in [2014 ALL MR (Cri) 299] and
Tikaram Krishnalal Pandey Vs. The State of Maharashtra
reported in (2014 ALL MR (Cri) 2326], relied on by learned
Advocate for the appellant.
18. Taking into consideration the above discussed
principles of law, now we proceed to examine the evidence
placed on record by both parties to ascertain whether accused
can rebut the presumption available against him that he was not
insane at the time of commission of offence or whether benefit
of Section 84 of the I.P.C. can be extended in favour of accused
person considering his state of mind at the time of commission
of offence.
A reference made from Modi's Medical Jurisprudence
and Toxicology, 22nd Edition, are relevant, which read thus :
Cri.Appeal No. 173/2001
19. "What is paranoid schizophrenia, when it starts, what
are its characteristics and dangers flowing from this ailment?
Paranoid schizophrenia, in the vast majority of cases, starts in
the fourth decade and develops insidiously. Suspiciousness is
the characteristic symptom of the early stage. Ideas of
reference occur, which gradually develop into delusions of
persecution. Auditory hallucinations follow, which in the
beginning, start as sounds or noises in the ears, but afterwards
change into abuses or insults. Delusions are at first indefinite,
but gradually they become fixed and definite, to lead the patient
to believe that he is persecuted by some unknown person or
some superhuman agency. He believes that his food is being
poisoned, some noxious gases are blown into his room and
people are plotting against him to ruin him. Disturbances of
general sensation given rise to hallucinations, which are
attributed to the effects of hypnotism, electricity, wireless
telegraphy or atomic agencies. The patient gets very irritated
and excited owing to these painful and disagreeable
hallucinations and delusions. Since so many people are against
him and are interested in his ruin, he comes to believe that he
must be a very important man. The nature of delusions thus
may change from persecutory to the grandiose type. He
Cri.Appeal No. 173/2001
entertains delusions of grandeur, power and wealth, and
generally conducts himself in a haughty and overbearing
manner. The patient usually retains his memory and orientation
and does not show signs of insanity, until the conversation is
directed to the particular type of delusion from which he is
suffering. When delusions affect his behaviour, he is often a
source of danger to himself and to others. (Modi's Medical
Jurisprudence and Toxicology, 22nd Edn.)
Further, according to Modi, the cause of
schizophrenia is still not known but heredity plays a part. The
irritation and excitement are effects of illness. On delusion
affecting the behaviour of a patient, he is a source of danger to
himself and to others."
20. Though defence has heavily relied on evidence of Dr.
Laxman Shende (D.W.1). After going through his evidence, it
emerges that, the appellant was under his observation for the
period from 26/6/1999 to 9/7/1999 at Civil Hospital, Latur.
According to this Medical Officer, during that period, appellant
was suffering from major depression with psychiatric features.
However, from his cross-examination, it also emerges that, mere
mental depression does not amount to abnormality and if an
Cri.Appeal No. 173/2001
illegal act is committed by sane person, there is possibility of his
affecting the mental balance. He has also admitted that,
because of commission of such illegal act, the person may
become guilty conscious and such person may talk low tone
because of guilty mind. From the evidence of this witness, it
emerges that, the appellant was examined by this Medical
Officer on 29/9/1999 and that time also, the symptoms found at
the time of admission of the patient in Civil Ward were noticed.
However, the condition of appellant after six days from the date
of occurrence is not sufficient to hold that, at the time of
commission of the offence the appellant was under the fit of
paranoid schizophrenia. Similarly, the evidence of Dr. Satish
Maniyar (D.W.2) is of no help to the prosecution to bring the
case within ambit of Section 84 of the Evidence Act, because this
Medical Officer, who is not Psychiatrist, had only examined and
observed the behaviour of appellant in the month of September
1998 i.e. much prior to the occurrence of the incident. This
Medical Officer also opined regarding psychiatric depression of
the appellant and it cannot be equated with paranoid
schizophrenia. Similarly, the evidence of Dr. Ivan Nefto (D.W.3)
relates with condition of the appellant in Mental Hospital,
Yerwada on 3/7/1999 to 27/11/1999 when the accused was
discharged. His diagnosis was also restricted with the ailment of
Cri.Appeal No. 173/2001
appellant as major depression with psychiatric features. In his
cross-examination, he has also made it clear that, he cannot tell
about the mental condition of appellant prior to 31/7/1999.
Even evidence of Dr. Liyakat Mujawar (D.W.4) is of no help to
the defence to prove the mental condition of appellant at the
relevant time of commission of the offence because he has also
admitted in his cross-examination that he cannot tell about the
mental condition of appellant at the time of commission of
alleged crime. Thus, after careful examination of the evidence
of all defence witnesses who are expert in medical science, it
becomes clear that their evidence is not related with the mental
condition of the appellant/ accused at the relevant time of the
commission of the offence. Even these Medical Officers have not
expressed any opinion regarding mental condition of the accused
either preceding the commission of offence or immediately after
commission of the offence. Therefore, evidence placed on
record by defence is of no help to hold that at the time of
commission of the offence, the accused was incapable of
understanding anything about his act due to the attack of
paranoid schizophrenia.
21. Even the first remand report of the accused before
Judicial Magistrate, First Class, Latur does not show that his
Cri.Appeal No. 173/2001
behaviour was abnormal immediately after his arrest when he
was produced before the Court. On the other hand, when on
21/6/1999, after arrest of the accused, he was produced before
Chief Judicial Magistrate, Latur, he had properly answered the
questions put up by Chief Judicial Magistrate, Latur regarding
any ill-treatment to him. On that date, police custody of the
accused was granted till 25/6/1999. On 21/6/1999 itself
accused engaged an Advocate and on 25/6/1999, father of the
accused filed application (Exh.9) before Chief Judicial Magistrate,
Latur, requesting him to refer the accused to medical expert i.e.
Psychiatrist for proper medication. Considering that request, the
accused was referred to Civil Hospital, Latur. The certificate
issued by Vivekanand Hospital, Latur, annexed with application
of father of the accused shows that, in the past, in between
9.9.1998 to 10.9.1998, accused was treated only for ailment of
'depression' and not for paranoid schizophrenia. In the order
passed by Chief Judicial Magistrate, Latur on subsequent remand
report dated 25/6/1999, the learned Magistrate nowhere
mentioned any violent behaviour or abnormal behaviour of the
accused. This material on record is sufficient to hold that, even
after arrest of the accused on the date of incident, his behaviour
was normal.
Cri.Appeal No. 173/2001
22. Regarding medical history of accused and his
conduct on 19/6/1999 at night hours, the evidence of Vanita
Bhatambrekar (P.W.7), who is sister of accused, is most
important. From her evidence, it emerges that, on 19/6/1999,
at night hours, accused, deceased and other family members
including Vanita Bhatambrekar (P.W.7) had their dinners at their
residence and all of them watched T.V. programme for some
time. Thereafter, accused and deceased went to their bedroom.
It means that, before going to bedroom, the overall conduct of
the accused was absolutely normal. From the evidence of Vanita
Bhatambrekar (P.W.7), it further emerges that, on 20/6/1999 at
about 4.30 to 5.00 a.m., when she woke up, she saw that,
accused and her sister Anita were talking together in the
passage. That time, accused told Vanita Bhatambrekar (P.W.7)
that Surekha had become unconscious and was not talking.
Thereafter, accused himself brought autorickshaw and along with
his sisters, took the deceased initially to private hospitals and at
last, to Civil Hospital, Latur where the deceased was declared as
dead. This series of events, which occurred immediately after
the death of deceased, clearly indicates that, even after the
commission of the offence, accused was absolutely normal.
Vanita Bhatambrekar (P.W.7) nowhere deposed in her evidence
that in the past at any time accused became violent or he
Cri.Appeal No. 173/2001
attacked any family member. Thus, from the testimony of
Vanita Bhatambrekar (P.W.7), it can be gathered that, as per
medical history of the accused, though he was treated for
mental depression at Vivekanand Hospital, Latur and though
once he tried to commit suicide, he never became violent. No
signs of paranoid schizophrenia were visible prior to the
occurrence of the incident, as reflected from the testimony of
Vanita Bhatambrekar (P.W.7) and even from the testimony of Dr.
S.R. Maniyar (D.W.2), who treated the accused on 9/9/1998 at
Vivekanand Hospital, Latur, after his attempt to commit suicide.
For the depression resulting into attempt to commit suicide,
there might be various reasons such as failure in business of
contractorship etc. Therefore, only because accused was under
depression and he attempted to commit suicide, inference
cannot be drawn that he was the patient of paranoid
schizophrenia. Thus, the past medical history of the accused
does not show that he was the diagnosed patient of paranoid
schizophrenia or at any time he became violent or he was
dangerous for his family members.
23. As observed above, even after commission of the
offence, the conduct of the accused was absolutely normal. He
cannot take benefit of the factor that he did not try to run away.
Cri.Appeal No. 173/2001
In view of law laid settled by Apex Court in Elavarasan Vs.
State reported in (AIR 2011 SC 2816), conduct of accused of
not fleeing from spot would not in itself show that person
concerned was insane at the time of commission of offence.
24. Therefore, considering past medical history of
accused, his conduct preceding the occurrence of the incident
and conduct post-occurrence of the incident, we are fully
satisfied that at the relevant time of the commission of the
offence, accused was not under the attack of paranoid
schizophrenia or any other mental ailment. It is well settled by
Apex Court in Mariappan Vs. State of Tamil Nadu (cited supra)
that the crucial point of time, at which unsoundness of the mind
could be established, is the time when the crime is actually
committed and the burden of proving this lies on the accused/
appellant. However, in the case at hand, defence miserably
failed to prove that at the time of commission of offence, by the
reason of unsoundness of mind, accused was incapable of
knowing the nature of the act or unable to understand what is
wrong or right. Even the appellant could not bring on record
such slightest possibility. Therefore, appellant failed to bring
this case within fourcorners of Section 84 of the Indian Penal
Code to claim acquittal.
Cri.Appeal No. 173/2001
25. In the result, we have come to the conclusion that
prosecution has proved beyond reasonable doubt that, on the
date and time of the incident, accused caused homicidal death of
deceased Surekha with requisite intention and thereby
committed offence punishable under Section 302 of the Indian
Penal Code. The conviction recorded by trial Court and the
sentence imposed by the trial Court is absolutely correct and
needs no interference. This Criminal Appeal being devoid of
merits, deserves to be dismissed. Hence the following order :
ORDER
(i) Criminal Appeal No.173/2001 stands dismissed.
(ii) Accused/ appellant shall surrender to his bail bonds
before the trial Court immediately to undergo the
sentence.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
