Rajendra S/O. Adakuji Choudhary vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 17579 Bom

                                        1          202.Cri.Appeal No.564.18-J (1).doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR


                      CRIMINAL APPEAL NO.564/2018

Rajendra S/o. Adakuji Choudhary,
Convicted Offender No. C-9890,
Age : 51 years, Occ. : Labour,
R/o. Ward no.2, Virur Station,
Tahsil : Rajura, District : Chandrapur.                     ... APPELLANT
(At Present in Nagpur Central Jail)

        ----VERSUS----

The State of Maharashtra,
Through P. S. O. Virur,
Police Station, Virur,
Tahsil : Rajura, Distt. Chandrapur.                         ... RESPONDENT

-------------------------------------------------------------------------------------------
Mr. R. D. Hajare, Advocate (Appointed) for the Appellant.
Mr. T. A. Mirza, Additional Public Prosecutor for Respondent/ State.
-------------------------------------------------------------------------------------------

                  CORAM             :   M. S. SONAK AND
                                        PUSHPA V. GANEDIWALA, JJ.

        RESERVED ON                 :    13.12.2021.

        PRONOUNCED ON :                  17.12.2021



JUDGMENT : (PER M. S. SONAK, J.)

1. Heard Mr. R. D. Hajare, learned Counsel appointed

under the Legal Aid Scheme for the appellant and Mr. T. A. Mirza

learned Additional Public Prosecutor for the respondent/State.

2. This appeal is directed against the judgment and order

dated 15.11.2017 made by the learned Additional Sessions Judge

at Chandrapur in Sessions Case No.84/2014 convicting the

appellant for the offenses punishable under Sections 302 and 307

of the Indian Penal Code (IPC) and sentencing him accordingly.

3. The prosecution version is that, on 19.04.2014 between

9.30 p.m. and 10.30 p.m., the appellant assaulted his two brothers

Chandu and Gosai with an axe when they were sleeping on the

terrace of the house along with several others. As a result of the

assault, Chandu sustained grievous injuries to his head and died of

the same. Gosai also sustained grievous injuries but survived. The

appellant with the same axe inflicted injuries on himself and

ultimately proceeded to the Police Station and surrendered.

4. Mr. Hajare, learned Counsel for the appellant appointed

under the Legal Aid Scheme, based on the evidence on record

accepted that the injuries sustained by Chandu were homicidal.

He also did not seriously dispute that the appellant was the author

of the injuries inflicted on his two brothers Chandu and Gosai.

He, however, submitted that this was a fit case where the

appellant was entitled to the protection under Section 84 I.P.C.

because there is ample evidence on record that establishes that the

appellant, by reason unsoundness of mind, was incapable of

knowing the nature of his act at the time of doing it. He pointed

out the evidence on record on this aspect and even relied on

certain decisions in support of his contention. He submitted that

even though, the burden of proving the people of insanity may be

on the accused, such burden has to be discharged not beyond a

reasonable doubt, but only by applying the standards of a

preponderance of probabilities. He submits that since this aspect

has not been properly appreciated by the learned Additional

Sessions Judge, the appellant is entitled to be acquitted of the

charges leveled against him.

5. Mr. Hajare, learned Counsel for the appellant also

submitted that the provisions of Chapter - XXV of the Criminal

Procedure Code have not been properly followed in this matter

and this is also a reason for interfering with the impugned

judgment and order.

6. Mr. T. A. Mirza, learned Additional Public Prosecutor

defended the impugned judgment and order based on the

reasoning reflected therein. He submitted that the burden of

proving the ingredients of Section 84 of I.P.C. was squarely on the

appellant and this burden, the appellant, has failed to discharge.

He submits that from the conduct of the appellant, particularly the

conduct by which he inflicted injuries on himself and surrendered

to the Police Station, it is more than evident that the appellant

was aware of what he was doing. He submitted that this was

sufficient to negate the plea of insanity as contemplated by

Section 84 of the I.P.C. He submitted that the appellant, to

succeed had to establish legal and not mere medical insanity,

which the appellant has miserably failed. He submits that the two

Doctors that were examined in this matter also do not support the

plea of legal insanity. He, therefore, submits that this appeal may

be dismissed.

7. The rival contentions now fall for our determination.

8. In this case, even though, the learned Counsel for the

appellant has not challenged the findings recorded by the learned

Additional Sessions Judge that the appellant was beyond a

reasonable doubt, the author of the injuries sustained by his

brother Chandu and Gosai, we have ourselves perused through

the evidence on record, both oral as well as documentary and

satisfied ourselves that the prosecution has indeed established this

aspect beyond a reasonable doubt.

9. The prosecution, in this case, examined Nita Chaudhary

(PW-1)-the wife of deceased Chandu, Gosai (PW-6)- the

appellant's brother whom the appellant assaulted with the same

Axe after inflicting fatal injuries on Chandu, Sagar (PW-8) - the

son of Chandu, who was sleeping next to Chandu, when appellant

assaulted him with the axe and the testimonies of these witnesses

are more than sufficient to establish beyond a reasonable doubt

that it was the appellant who was the author of the injuries

sustained by deceased Chandu and Gosai.

10. Even Panchafulabai (DW-1)- the appellant's wife

deposed that on the fateful night she heard some noise from the

terrace and when she woke up and came out of her room, she saw

the appellant stepping down from staircase having an axe in his

hand. She deposed that the appellant then inflicted axe blows to

his head and caused injuries to himself. There is medical evidence

as well as forensic evidence to link the Appellant with the assaults

on Chandu and Gosai. Therefore, even we are quite satisfied that

the appellant was the author of the injuries sustained by his

brothers Chandu and Gosai on the fateful night of 19.04.2014.

11. The only question that remains for determination,

therefore, is whether the appellant, at the time of the commission

of the aforesaid acts of assault, by reason of unsoundness of mind,

was incapable of knowing the nature of his act or that he was

doing what was either wrong or contrary to law. In short,

therefore, the only question which falls for serious determination

is whether the appellant, based on the evidence on record, has

made good the plea of insanity as contemplated by Section 84 of

the I.P.C.

12. Since, Section 84 of I.P.C. constitutes a defence to a

criminal charge, the burden of proving the existence of

circumstances bringing the case within the purview of Section 84

I.P.C. lies upon the accused having regard to the provisions of

Section 105 of the Evidence Act, 1872. However, it is quite well

settled that the accused is not required to discharge this burden

beyond a reasonable doubt. The burden in such case is not higher

than that which is raised upon a party in civil proceedings and

such burden can be discharged by applying the standard of

preponderance of probabilities.

13. In Devidas Loka Rathod Vs. State of Maharashtra

reported in (2018) 7 SCC 718, the Hon'ble Supreme Court by

reference to its earlier decision in Dahyabhai Chhaganbhai

Thakkar Vs. State of Gujarat reported in AIR 1964 SC 1563 has

held that the law undoubtedly presumes that every person

committing an offence is sane and liable for his acts, though in

specified circumstances such presumption may be rebuttable.

Section 84 of the I.P.C. carves out an exception, that an act will

not be an offence, if done by a person, who at the time of doing

the same, by reason of unsoundness of mind, is incapable of

knowing the nature of the act, or what he is doing is either wrong

or contrary to law. But this onus on the accused, under Section

105 of the Evidence Act is not as stringent as on the prosecution

to be established beyond all reasonable doubts. The accused has

only to establish his defence on a preponderance of probability,

after which the onus shall shift on the prosecution to establish the

inapplicability of the exception.

14. But, it is not every and any plea of unsoundness of mind

that will suffice. The standard of test to be applied shall be of legal

insanity and not medical insanity. Further, the crucial point of

time for considering the defence plea of unsoundness of mind has

to be about the mental state of the accused at the time the offence

was committed collated from evidence of conduct that preceded,

attended, and followed the crime. If from the materials placed on

record, reasonable doubt is created in the mind of the Court about

the mental condition of the accused at the time of occurrence, he

shall be entitled to the benefit of the reasonable doubt and

consequent acquittal. The Hon'ble Supreme Court relied on

Vijayee Singh vs. State of U.P.,(1990) 3 SCC 190 in support of the

last proposition.

15. In Dahyabhai Thakkar (supra) the Hon'ble Supreme

Court has explained the doctrine of the burden of proof in the

context of the plea of insanity at paragraph 7, (AIR Page 1568) in

the following terms.

"(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 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."

16. The evidence on record, in this case, will have to be,

therefore, evaluated applying the aforesaid principles explained in

Devidas Rathod (supra) and Dahyabhai Thakkar (supra) to

determine whether the appellant, in this case, has succeeded in

making good his plea of insanity under Section 84 of the I.P.C. or

at least succeeded in creating reasonable doubt about his mental

condition at the time of the occurrence to be entitled to the

benefit of reasonable doubt and consequent acquittal in terms of

the law laid down by the Hon'ble Supreme Court in Vijayee Singh

(supra).

17. Nita (PW-1) - wife of deceased Chandu, deposed to that

part of the incident which she witnessed and stated that she saw

and heard the appellant saying "these two have joined hands, I

will kill both of them". She also deposed that the appellant came

down from the terrace and started hitting his head with the axe.

In the cross-examination, Nita denied that in the year 2009, the

appellant's wife and his two brothers i.e. deceased Chandu and

Gosai used to take the appellant to Chandrapur to Dr. Shivji for

psychiatric treatment or that the appellant used to say that he

hears strange sounds and just leave the home without any

intimation. She denied that Chandu and Gosai used to search the

appellant and bring him home or that every Pornima would take

him to persons conducting black magic.

18. Nita admitted that there were no specific disputes or

altercation between the appellant and Chandu and Gosai, but

stated that the appellant used to quarrel intermittently. Nita

admitted that on the date of the incident, no quarrel or altercation

are taken place with the appellant, but deposed that 8 days before

the incident, a quarrel had taken place. Nita claimed that she had

stated this fact to the police when they recorded her statement but

was unable to explain why the police has failed to record the

same. Finally, she denied the suggestion that the appellant was

afflicted by a mental disorder and it is due to this fact that he

attacked Chandu and himself.

19. Gosai (PW-6) - the appellant's brother whom he

assaulted with the same axe with which he killed Chandu deposed

that the appellant and Chandu used to quarrel with each other

under the influence of liquor and it is he who would counsel both

his brothers time and again. He also stated that he has informed

the Tahsildar and Police about quarrels between the appellant and

Chandu under the influence of liquor, but he was unable to

explain why this was not recorded in his statement. This witness

was confronted with his statement in which he has clearly stated

that there were no disputes between the brothers. Gosai,

however, stated that this was not correct. Gosai also denied the

suggestion that the appellant was behaving like a lunatic since

2009. He denied that he or the wife of the appellant used to take

the appellant to the hospital of Dr. Shivji - Psychiatric or that the

appellant was taken for such treatment till 24.02.2012 or even

thereafter.

20. Gosai in his further cross-examination denied having

stated in his statement to the Tahsildar that the appellant was

having a mental disorder or was a lunatic. The portion where

Gosai had stated so, was read over to him but he stated that this

was not correct. Finally, Gosai denied the suggestion about the

appellant being a lunatic and assaulting his brother as well as

himself in the fit of such lunacy.

21. At this stage, it is also necessary to refer to the

statement given by Gosai under Section 164 of the Criminal

Procedure Code. Though this statement is styled as "Dying

Declaration", this statement cannot be considered as a dying

declaration because ultimately Gosai did not succumb to the

injuries sustained by him. In his statement, Gosai clearly stated

that there were no quarrels between the brothers and that the

appellant was a mental case. When Gosai was confronted with

this statement in cross-examination, he was unable to offer any

cogent explanation as to why at the earliest instant, he had said

these things in his so-called dying declaration or rather the

statement under Section 164 of Criminal Procedure Code.

22. Sagar (PW-8) - son of deceased Chandu, who was

sleeping right next to Chandu when the appellant assaulted

Chandu with an axe deposed to the incident. In his cross-

examination, he admitted that their relations with the appellant

and his family were cordial. He claimed that he did not know as

to whether the people from the village used to call the appellant

insane.

23. Uma (PW-9) - the wife of Gosai (PW-6) deposed to the

incident that took place on their terrace on 19.04.2014 between

9.30 p.m. to 10.00 p.m. In her cross-examination, she admitted

that the appellant was taken to the hospital of Dr. Shivji in the

year 2009 as he was having a mental problem. She also admitted

that the appellant assaulted himself on his head with the axe and

went away.

24. Now, before coming to the medical evidence or the

defense evidence, we must say that even the initial reaction of the

close relations of deceased Chandu and Gosai was that there was

some mental problem with the appellant and further, that the

relationship between the brothers was quite cordial. This is

evident from the statements given by these witnesses soon after

the incident. However, in the course of their deposition in the

Court, these witnesses tried to deny that there was any mental

problem with the appellant or that the relationship among the

brothers was quite cordial. The contradictions and omissions

were, therefore, duly marked after confronting the Investigation

Officer - Dhanpal (PW-12) with the same.

25. Uma (PW-9) expressly admitted that the appellant was

taken to the hospital of Dr. Shivji in the year 2009 as he was

having a mental problem. Sagar (PW-8) expressly admitted that

the relations between the family members and the appellant were

quite cordial. Gosai (PW-6) attempted to make improvements

but was unable to explain why the matters which he was now

deposing were not stated in the statement recorded by the police

or by the Tahsildar. He was also unable to explain why the

statement before the police and the Tahsildar referred to the

mental condition of the appellant and the absence of any quarrel

between the brothers. Thus, based on the evidence of relatives of

Chandu and Gosai, it can be said that there were some issues of

mental disorders with which the appellant was affected, and

further, the relations between the brothers were quite cordial.

26. The prosecution, in this case, examined Dr. Lahu

Kudmethe (PW-10) since he conducted the postmortem of

Chandu, examined the injuries sustained by the Gosai as well as

the appellant. In his cross-examination, he admitted that he

cannot say whether a person who was having mental disorders

can inflict injuries with the axe to himself. This was in the context

of injuries sustained by the appellant on himself with the very axe

with which he killed Chandu and injured Gosai.

27. The prosecution also examined Dr. Sachi Bang (PW-2) -

a Psychiatrist mainly in the context of determining whether the

appellant was fit to stand trial. P.W.-2 deposed that the appellant

was admitted to the hospital for about 12 days and his behavior

was observed. She deposed that the medical history revealed that

the appellant was suffering from mental illness since 2009 as he

reported to the private hospital. She deposed that the current

complaint of the appellant was headache, restlessness, sleep

disturbances, and mild depression. However, she found that the

appellant was well oriented and well behaved, co-operative, sound

mind though he was restless most of the time and there was mild

depressive cognition. She deposed that his social judgment was

intact. She verified the contents of her report at Exh.31.

28. Dr. Sachi (PW-2) was cross-examined and she admitted

that the treatment of the appellant was continued even after the

appellant was in jail and since 09.05.2014 and it was related to

mental illness. She admitted that the documents issued by the

private hospital of Dr. Shivji show that the appellant was taking

treatment in respect of mental illness and schizophrenia. She

deposed that the appellant was previously suffering from

schizophrenia but was now OK though he was having some mild

depression. She accepted the suggestion that the patient with

schizophrenia can attack others or get himself injured. She also

admitted that schizophrenia can be reduced and can turn into a

mild depression in some patients.

29. In the Psychiatric Assessment Report (Exh.31) there is a

reference to the appellant suffering from mental illness since

2009, characterized by fearfulness, hearing unreal voices, and

wandering away from home. The report states that the appellant

during his ward stay, was treated with the following medications

and he showed improvement overtime on this treatment :

          T. Olanzapine             5 mg/day
          T. Escitalopram           10 mg/day
          T. Lorazepam              1 mg/day
          T. Clonazepam             0.5 mg/day

30. The Psychiatric Assessment Report (Exh.31) concludes

the following :

1. The above named patient, Mr. Rajendra Chaudhary, suffers from Schizophrenia, currently in remission, with mild depressive episode with somatic symptoms (ICD-10)

2. He is of Sound mind at present and fit to undergo trial, in my opinion.

3. Currently, patient has to be maintained on medications with regular follow-ups to the Psychiatry OPD in my opinion.

31. Thus, even the prosecution witness Dr. Sachi Bang

(PW-2) accepts that the appellant has a history of mental illness

since 2009 that was characterized by fearfulness, hearing unreal

voices, and wandering away from home, for which he was taking

medical treatment. The Psychiatric Assessment Report referred to

the medications that were given to the appellant and concludes

that the appellant suffers from Schizophrenia, currently in

remission, with a mild depressive episode with somatic symptoms.

PW-2 admitted that Schizophrenia can cause the patient to attack

others or injure themselves.

32. By way of defence, Panchafulabai (DW-1) - the wife of

the appellant, and Dr. Imran Shivji (DW-2) deposed in this matter

inter alia on the issue of the appellant's insanity plea.

33. Panchafulabai (DW-1) firstly deposed that the brothers

and their families were having a cordial relationship. She deposed

that the appellant used to earlier behave well until he turn insane.

She deposed that the appellant was used to murmuring that the

people are coming to kill him or that police are coming to catch

him. She deposed that they took the appellant to Dr. Shivji

Hospital at Chandrapur. She deposed that even Gosai had

accompanied them to this hospital. She deposed that the

appellant was admitted to this hospital for treatment. She deposed

that the treatment continued about 1 ½ years. She deposed that

on the date of the incident, the appellant complained that he was

shivering and required her to provide a blanket. She deposed that

she provided two blankets. She deposed that after she heard

some noise on the terrace, she came out of her room and noticed

that the appellant stepped down from the staircase with an axe to

his hand. She deposed that the appellant inflicted axe blows to

his head and caused injuries and then ran away.

34. In her cross-examination Panchafulabai (DW-1)

admitted that the appellant used to drink liquor, but denied that

there was any quarrel between the appellant and deceased

Chandu. She denied the vague suggestion about property

disputes. She denied the suggestion put to her that her

statements in the chief examination were false. Panchafulabai

(DW-1) specifically produced the medical case papers concerning

the appellant, which includes several reports, prescriptions,

medical bills, etc. concerning the medical treatment of the

appellant. There were no challenges to all these and the perusal

of the same suggests that from the year 2009, the appellant was

taking medical treatment from a Psychiatrist and Neuro-

Psychiatrist concerning his medical condition. This documentary

evidence refers to the line of treatment and medication that the

appellant was taking from the year 2009 for his medical condition.

35. Dr. Imran Shivji (DW-2) also deposed in this matter. He

stated that the appellant was brought to his hospital on

30.07.2009 by his brother-in-law and nephew, complaining that

he was hearing voices of police wireless or that police would

arrest him or that people would attack and kill him due to which

he was not sleeping at night and he was even walking into the

forest. DW-2 deposed about the history of convulsion since last 10

years of approximately three epileptic episodes per year. He

deposed that the appellant was treated with anti-epileptic drugs,

neuroleptic drugs, and after he was recovered, he was discharged.

DW-2 deposed to the various prescriptions E.E.G. Report, C.T.

Scan Report, Discharge Report concerning the appellant. DW-2

also deposed that the appellant visited his hospital even thereafter

for treatment, which has evident from the various prescriptions

that were put to him. He deposed that even as of 2012, he treated

the appellant because he was complaining of hearing voices of

police wireless, etc.

36. Dr. Shivji deposed that he was appointed as a

psychiatrist by the Government on an honorary basis and he

visited the jail once in 15 days. He deposed that the appellant was

under his supervision from 09.05.2014 to 19.08.2016 and during

this period he has examined and treated him about 18 times. He

also deposed that the appellant thereafter did not follow the

treatment. He deposed that the appellant was being treated for

schizophrenic disorder and he confirmed that the prisoner in the

docket is indeed the appellant, who he used to treat. In his cross-

examination, DW-2 admitted that the medicines prescribed by him

can also be prescribed to a patient, who drinks heavily. DW-2

denied the suggestion that the appellant was not suffering from

any psychic problem but was only a heavy drinker.

37. Now, based on the medical evidence on record,

including in particular the evidence of Dr. Sachi Bang (PW-2) and

Dr. Imran Shivji (DW-2), we think that the case has been made out

by the appellant that he was suffering from legal insanity at the

time when he inflicted the axe injuries on his brothers Chandu

and Gosai. There is ample evidence on record that the appellant

was taking treatment for a mental disorder or schizophrenia right

from the year 2009. His mental disorder involved inter alia

hearing of voices that people or police are coming to catch him or

kill him. There were instances of epileptic episodes, there were

instances of the appellant wandering in the forest. There is

medical evidence about the line of treatment and medication that

the appellant was taking.

38. All the above pieces of evidence are to be considered

with the evidence that there were no disputes or serious quarrels

between the brothers over any issues and yet the appellant on the

fateful night of 19.04.2014, assaulted his two brothers who were

sleeping on the terrace along with several others with an axe. The

appellant soon thereafter neither tried to conceal the axe nor flee

from justice. He even assaulted himself with the same axe and it is

the prosecution case that the appellant then walked to the police

station and surrendered himself to the police. The evidence of the

relatives as also the defence evidence of Panchafulabai (DW-1)

also establishes at least by a preponderance of probabilities that,

the appellant was suffering from mental disorder i.e.

schizophrenia and therefore, the inference can legitimately be

drawn that the appellant was, on account of unsoundness of his

mind, incapable of knowing the nature of his act or that he is

doing what is either wrong or contrary to law.

39. In this case, simply because the appellant injured himself

or surrendered to the police soon after the incident, it cannot be

concluded that the appellant was aware of what he was doing and

therefore, the plea of insanity was not available to the appellant.

There is evidence that even after the incident, the appellant was

taking treatment from the Psychiatrist and was on medication.

There is overwhelming evidence that the appellant was under

treatment for almost 4 to 5 years before the date of the occurrence

and was taking treatment for mental disorder/schizophrenia. The

prosecution has been unable to establish any motive. The attempt

to make out some cases of property disputes between the brothers

has failed. There is no clinching evidence on this aspect. Rather,

the prosecution witnesses suggest that there were no disputes or

altercations between the brothers and the relations were quite

cordial.

40. The appellant, in this case, has to only prove his defence

by applying the standard of preponderance of probabilities and

not beyond all reasonable doubts. Applying this test, we think

that the appellant, in this case, has at least succeeded in creating

reasonable doubt about his mental condition at the time of the

occurrence and therefore, the appellant, in terms of the law laid

down by the Hon'ble Supreme Court in Devidas Rathod (supra)

and Vijayee Singh (supra) would be entitled to the benefit of the

reasonable doubt and consequent acquittal.

41. This is a case, where even the prosecution witnesses at

the earliest opportunity accepted that the appellant was suffering

from a mental disorder or that there were no serious disputes or

quarrels between the brothers inter se. In the course of evidence,

these prosecution witnesses tried to depose to the contrary, but

not with much success. The medical evidence produced by the

prosecution also, to a great extent, supports the appellant's

defence by applying the standard of preponderance of

probabilities. The Psychiatric Assessment Report deposed to by

PW-2 at the highest suggests that the appellant at the time of

issuance of this certificate on 20.12.2016 was fit to undergo trial.

This report certainly does not say that the appellant was not

legally insane at the time of the occurrence. Rather this very

certificate concludes that the appellant suffers from schizophrenia

with mild depressive episodes and somatic symptoms. The

certificate speaks about the medical treatment and the effect

which the same has had on the appellant's mental condition.

Now, this certificate has to be considered along with certain

admissions given by PW-2 and most importantly the evidence of

Dr. Shivji (DW-2). All these material, if cumulatively considered

and evaluated, does create a doubt about the mental condition of

the appellant at the time he assaulted his two brothers without

their being any provocation or apparent cause on the night of

19.04.2014.

42. In Shrikant Anandrao Bhosale vs State Of Maharashtra

reported in (2002) 7 SCC 748, the Hon'ble Supreme Court was

concerned with a case of a quarrel between the accused and his

wife. Ultimately, while the wife was washing clothes in the

bathroom, the accused hit her with a grinding stone on her head.

The learned Sessions Court and learned High Court convicted the

accused of offence under Section 302 of the Indian Penal Code.

The Hon'ble Supreme Court on consideration of the totality of the

circumstances accepted the case of the accused that he was

suffering from paranoid schizophrenia and as a result, was

incapable of knowing the nature of the act. The Hon'ble Supreme

Court granted the accused the benefit of Section 84 of I.P.C. by

rejecting the contention of the State that this was not a case of

insanity, but rather, the accused acted on an account of extreme

anger, which is different and distinct from legal insanity.

43. The Hon'ble Supreme Court noted that there was a

history of psychiatric illness in the family of the accused. The

Hon'ble Supreme Court then discussed what is paranoid

schizophrenia by referring to Modi's Medical Jurisprudence and

Toxicology (22nd Edn.) by observing that

"10..........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 develops into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but are afterwards changes 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 gives 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 prosecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversations 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."

44. The Hon'ble Supreme Court thereafter, held that the

state of mind of the accused at the time of the commission of

offence is to be ordinarily inferred from the circumstances.

Further, the nature of burden of proof on the accused is no higher

than that which rests upon a party to civil proceedings. Applying

these principles, the Hon'ble Supreme Court noted that the

accused had a family history of psychiatric illness; that when the

cause of illness is not known, the hereditary plays a part; the

accused was treated for unsoundness of mind since 1992 and had

been diagnosed as suffering from paranoid schizophrenia; within

a short span, he had to be taken for treatment of ailment several

times to the hospital; that the accused was under regular

treatment for the mental ailment.

45. The Hon'ble Supreme Court also put into account the

following two circumstances:-

a] The weak motive for killing the wife i.e. she being

opposed to the idea of the accused resigning as Police Constable;

b] Killing in daylight and no attempt to hide or run

away.

46. Based upon the aforesaid, the Hon'ble Supreme Court

held that the accused had proved the existence of circumstances

as are required by 105 of the Evidence Act to get the benefit of

Section 84 of the I.P.C. There was a reasonable doubt that at the

time of the commission of the crime, the accused was incapable of

knowing of the nature of the act by reason of unsoundness of

mind, and thus, he was entitled to the benefit of Section 84 of the

I.P.C.

47. Applying the principles adopted by the Hon'ble Supreme

Court in Shrikant Bhosale (supra) to the fact as borne out from

the evidence in the present case, we note that even in this case,

there is ample evidence on record that the appellant was being

treated for mental illness from the year 2009 and had been

diagnosed as a schizophrenic. There is evidence about the

medication that was being administered to the appellant from the

year 2009. There is evidence that even after the occurrence, the

appellant was being treated for his mental ailment. Further, in

this case, as well, the prosecution has failed to establish any

motive. The acts committed by the appellant were also on the

terrace of the house where his two brothers, the wife of one of the

brothers, and the son of the other brother were sleeping. After the

act, there is no evidence that the appellant tried to run away

rather it is the case of the prosecution that the appellant

surrendered to the police. Before that, the appellant, with the

very same axe, injured himself.

48. Having regard to all these circumstances, we are

satisfied that the appellant has at least succeeded in creating a

reasonable doubt that at the time of the commission of the acts in

question, he was incapable of knowing the nature of such acts or

that such acts were wrong. The case is therefore made out to the

extent, the benefit of Section 84 of the I.P.C. to the case of the

present appellant.

49. In Suryakant J. Gawde Vs. State (Through Ponda Police

Station) report in 2020 ALL M.R. (Cri) 1680, the accused was

charged with murdering his mother by crushing her head with a

stone. The prosecution was unable to establish any motive, there

was no evidence about any strained relationship with the mother,

there was no evidence of preparedness or pre-arrangement, there

was no attempt by the accused to run away from the scene of

murder and there was some evidence that the accused was taking

treatment at the mental hospital, sometime in the past. Based on

all these materials and upon taking into consideration the law laid

down by the Hon'ble Supreme Court in Shrikant Bhosale (supra),

the Division Bench extended the benefit of Section 84 of I.P.C. to

the accused.

50. In Suryakant Gawde (supra), the Division Bench

referred to the Textbook of Medical Jurisprudence, 25 th Edition, by

Modi, in which the learned Author has elaborately explained what

is delusion, psychosis, and neurosis murder. The learned author

has also noted that the medical officer who examined such an

accused - patient must consider the following points before

deciding whether the murder was a result of unsoundness of

mind:-

(1) Personal History of the Murderer.

(2) Absence of Motive - Not only does a mentally ill person commit murder without any motive but also often kills his nearest and dearest relations, for eg, his wife and children. It must, however, be difficult to trace a motive though there may be one.

(3) Absence of Secrecy - The murderer, if he happens to be mentally ill, does not try to conceal the body of his victim, nor does he attempt to evade the law by destroying evidence of his crime or by running away from the scene of the murder.

(4) Multiple Murders - A sane person usually murders only one person with whom he has a grievance. On the other hand, a mentally ill person may kill several persons, mostly his friends and relatives, for whom he has great regard and affection.

(5) Want of Preparedness or Pre-Arrangement - A mentally ill person does not make any pre-arranged plan.

(6) Want of Accomplices - A mentally ill person has no accomplice in the criminal act.

51. The evidence in the present case establishes the history

of mental illness in the appellant; the absence of motive. In this

case also the appellant has killed his two brothers, who are his

near relatives; the absence of secrecy; this is also a case of

multiple murders most importantly, there is no evidence of pre-

arranged plans or that the appellant had any accomplices.

52. In the case of Kamala Bhuniya Vs. State of West Bengal

reported in 2006 CR.L.J. 998, the Calcutta High Court held that

where a plea of insanity has been raised in connection with the

murder of close relation of the accused, motive always assumes

much importance and if there is no evidence indicating motive of

the murder, a conclusion will certainly follow in favor of the plea

of insanity. In this case, the Calcutta High Court was concerned

that a case where the accused killed her husband with an axe and

was ultimately apprehended by the police standing near the dead

body of her husband with the axe in her hand.

53. In Ramchandra S/o. Shenfadu Patil Vs. State of

Maharashtra reported in 2021 All M.R (Cri) 906, the Division

Bench of this Court on a detailed analysis of the legal position

about the plea of insanity under Section 84 of the I.P.C., extended

the benefit of Section 84 to the accused, who brutally assaulted

and killed his mother. The Division Bench held that,

"13........ if an accused, at the time of commission of the offence/ act, by reason of unsoundness of mind, was incapable of knowing the nature of his act or understanding what he was doing was either wrong or contrary to law, he would have the benefit of such unsoundness of mind. If the material before the Court in the form of oral and documentary evidence satisfies the test of a prudent man, the accused can be said to have discharged his burden. If the judge has a reasonable doubt, he has to acquit the accused. It was further concluded that the Court should not

feel helpless and would not be legally bound to convict an accused when there is a genuine and reasonable doubt in it's mind that the accused did not have the intention of causing the death of a person for which he has been charged. It was then held that the burden of adducing evidence of the delusion lay on the accused. The prosecution must prove beyond reasonable doubt, not only the actus reus but the mens rea. If this burden is discharged, the accused would be entitled for an acquittal."

54. The Division Bench in Ramchandra Patil (supra) noted

that the accused was taking treatment for his mental ailment for

some years before the occurrence and such treatment was

continued even during his incarceration after conviction by the

learned Sessions Court. The Division Bench took cognizance of the

medical report concerning the accused and the fact that no motive

was established by the prosecution. Based on this material, the

Division Bench extended the benefit of Section 84 of I.P.C. to the

accused before it.

55. In Dahyabhai Thakkar (supra), the Hon'ble 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 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 to prove resting on the prosecution was not

discharged.

56. According to us, the evidence on record was more than

sufficient for discharge of the onus on the appellant, and

thereafter, it was for the prosecution to lead further evidence in

rebuttal. The prosecution, in this case, has admittedly not led any

such evidence by way of rebuttal. Based on the cumulative

consideration of the evidence led by both the prosecution as well

as the defence, we are satisfied that this is at least a case where

the material on record creates a reasonable doubt about the

mental condition of the appellant at the time of the occurrence.

The prosecution has failed to establish mens rea or for that matter,

the prosecution has failed to explain why the appellant would act

in this manner, in the absence of any history of violence or enmity

between the brothers. The contradictions, omissions, and

improvements on the material aspects of quarrels have been duly

proved after the Investigating Officer was confronted with the

same. Therefore, having regard to all these factors, we think that

the appellant, in this case, is entitled to the benefit of the doubt

and consequent acquittal.

57. For all the aforesaid reasons, we allow this appeal and

make the following order :

a] The impugned judgment and order and the conviction

recorded against the appellant and the sentence imposed upon

him are all hereby set aside;

b] Though we are setting aside the appellant's conviction

and sentence, we direct the respondent/competent authority to

comply with the procedure prescribed in Section 338 and 339 of

the Criminal Procedure Code before the appellant is actually

released from prison.

c] The respondent/competent authority must file the

necessary compliance report before the learned Additional

Sessions Judge, Chandrapur in the file of Sessions Case

No.84/2014 in the aforesaid regard. If any directions are

necessary in this regard, the learned Additional Sessions Judge is

at liberty to give them

58. The appeal is disposed of accordingly. There shall be no

order for costs.

59. Pending application(s), if any, stand(s) disposed of.

60. Mr. R. D. Hajare, learned Counsel was appointed under

the Legal Aid Scheme to represent the appellant. We thank him for

his able assistance. His fees to be paid in terms of the Rules.

                             (PUSHPA V. GANEDIWALA, J.)                     (M. S. SONAK, J.)




                             RGurnule




Digitally signed byRANJANA
MANOJ MANDADE
Signing Date:17.12.2021
15:39