Ajay Ram Pandit vs The State Of Maharashtra
2022 Latest Caselaw 10914 Bom

                                                              Appeal.147.17.doc

ATU
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 147 OF 2017

      Ajay Ram Pandit,
      Age : 31 years,
      Convict Prisoner No.17021
      Undergoing Sentence at
      Yerwada Central Prison And
      Previously Residing at S.No.75,
      Shantinagar, Wanvadi, Pune.                      .. Appellant /
                                                          (Ori. Accused)
          Versus

      The State of Maharashtra
      (Through Wanvadi Police Station)                 .. Respondent

      Ms. Nasreen S. Ayubi, Appointed Advocate for Appellant.
      Mrs. J.S. Lohakare, APP for Respondent - State.

                           CORAM                : A.S. GADKARI &
                                                  MILIND N. JADHAV, JJ.
                           RESERVED ON   : 10th October 2022.
                           PRONOUNCED ON : 18th October 2022.

      JUDGMENT (PER : MILIND N. JADHAV, J.)

. This Criminal Appeal challenges the Judgment and Order

dated 25.03.2015 passed by the learned Additional Sessions Judge,

Pune (for short "Trial Court") in Sessions Case No.34 of 2012

convicting Appellant under Section 235(2) of the Criminal Procedure

Code, 1973 (for short "Cr.P.C.") of offence punishable under Section

302 of the Indian Penal Code (for short "IPC") and sentenced to

undergo imprisonment for life and to pay fine of Rs.100/-.

Appeal.147.17.doc

2. Prosecution case is as under:-

2.1. On 03.09.2011, one Darpan Divakar Desai from his mobile

No.9822076722 gave a phone call to PW - 1 Ashok Kisanrao Patil, PSI

Wanwadi Police Station, Pune informing that at Shivarkar Road in

front of Axis Bank on the footpath one person had assaulted a

pedestrian with an iron angle (iron rod). That due to the blow the

pedestrian fell down on the footpath in an injured condition and blood

was oozing from his head. That after the pedestrian fell down on the

ground, the Appellant inflicted a second blow with the iron rod on the

injured pedestrian's head.

2.2. The informant along with Police Inspector Muthe and staff

members came to the spot of incident and saw that deceased was lying

on the road in an injured condition and Appellant with iron rod in his

hand was apprehended by two persons namely, Nitin Abaji Khude

(PW-4) and Sukhdeo Namdeo Tujare (PW-5).

2.3. That on inquiry by the first informant and the Police Officer

it was revealed that Appellant was abusing people/passers by near the

spot of incident and at about 04:30 p.m. he abused the injured

pedestrian and when the pedestrian questioned him for his abuses, he

inflicted a blow on his head with the iron rod.

2.4. That when asked, the Appellant disclosed his name as Ajay

Ram Pandit. The injured pedestrian was admitted in Command

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Hospital, Wanwadi and at about 05:25 p.m. he was declared dead.

2.5. PW-1 - Ashok Kisarnrao Patil, PSI lodged a report of incident

in Wanwadi Police Station and registered C.R. No.202 of 2011 under

Section 302 IPC against Appellant.

2.6. On 03.09.2011, PSI Muthe prepared spot panchanama

(Exh.35) and arrest panchanama (Exh.33). The Investigation Officer

prepared inquest panchanama (Exh.16). Clothes of accused were

seized vide seizure panchanama (Exh.13 and Exh.14). In the spot

panchnama sample of blood and soil and the weapon used i.e. iron

angle (iron rod) were recovered from the spot of incident. On

07.09.2011, IO sent the muddemal which was seized to the Chemical

Analyzer for forensic analysis.

3. Statement of witnesses were recorded and after completing

investigation on 28.11.2011, chargesheet was filed in the Court of

Judicial Magistrate First Class, Cantonment Court. Since offence under

Section 302 IPC is exclusively triable by the Court of Sessions, case

was committed to Sessions Court for trial. Charge was framed vide

Exh.2 against Appellant. Its contents were read over and explained to

him in vernacular to which he pleaded not guilty and claimed to be

tried; his defence was of total denial.

4. The Trail Court framed the following point for

determination:-

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"1. Does prosecution prove that on 03.09.2011 in between 4.30 p.m. or thereabout, in front of Axis Bank, near Shantinagr Road, on footpath, Wanwadi, Pune the accused intentionally and knowingly committed murder of unknown person and thereby committed an offence punishable under section 302 of Indian Penal Code?"

4.1. The Trial Court answered the aforesaid points in the

affirmative.

5. In order to bring the guilt of accused prosecution has

examined 9 witnesses. Prosecution examined PW-4 and PW-5 who

were the eye witnesses to the incident. Both PW-4 and PW-5

apprehended the Appellant immediately after the incident, both these

prosecution witnesses have given identical narration of the incident.

They have deposed that on the date of incident at about 04:00 p.m.

Appellant was standing on the footpath holding the iron angle in his

hand and he was abusing the passers-by. That he abused one

pedestrian walking on the footpath and there was an exchange of

words between them. Appellant initially abused the pedestrian and in

return the pedestrian also abused him. That thereafter Appellant

inflicted a blow with the iron angle on the head of the pedestrian from

behind. That the pedestrian sustained head injury and he collapsed on

the road. Thereafter Appellant gave a second blow on the head of the

pedestrian with the iron angle. They both have deposed that at that

time people gathered near the place of incident and thereafter caught

hold of the Appellant and held him until police officers came on the

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spot. Both these witnesses have identified the Appellant in the Court

and also identified the iron angle which was used by the Appellant.

6. In cross-examination of PW-4 he has stated that prior to the

assault there was abusing between the Appellant and the victim. At

that time there were some people present who caught hold of the

Appellant. In cross-examination he has deposed that the people stated

that Appellant was insane, however he is not insane.

7. PW-5 in his cross-examination has stated that he was

standing at a nearby tea stall which was at a distance of 100 ft. from

the spot of incident. That he saw Appellant abusing people at the spot

of incident. He has however denied that there was discussion between

the gathered people that Appellant was insane.

8. In the context of the above ocular evidence of the two eye

witnesses, deposition of PW-7 - Shantaram Shete, Police Naik is

required to be seen. PW-7 has deposed that after he received a phone

call that one pedestrian was assaulted and lying injured, he and his

other police staff visited the spot of incident. He has deposed that

deceased was lying on the footpath in an injured condition and two

persons had held the Appellant. Thereafter he inquired with the two

persons namely, Nitin Khude (PW-4) and Sukhdeo Tujare (PW-5) who

told him that the Appellant was abusing the pedestrian at about 4:30

p.m. and when he was asked by him, he was assaulted by Appellant

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with the iron angle. That after the deceased fell down on the footpath

the Appellant once again inflicted a blow with the iron angle on his

head. PW-7 thereafter asked Appellant his name and in reply

Appellant gave his name as Ajay Ram Pandit, resident of Shantinagar.

In his cross-examination, PW-7 has stated that the persons who had

caught hold of Appellant informed him that he was mentally retarded.

9. Conjoint reading of the depositions and admissions given in

the cross-examination by the aforesaid three witnesses reveal an

important facet in the present case i.e. the fact of insanity of Appellant.

That the police officer who first reached the spot of incident and

apprehended the Appellant and brought him to the police station had

specific knowledge that he was having mental issues. In that view of

the matter, this specific knowledge is confirmed when PW-7 himself

states in his cross-examination that he was specifically informed by the

persons who caught hold of Appellant that he was mentally retarded.

In this background, it was the duty of the Police Officer / IO to

immediately subject the Appellant to medical treatment which we find

lacking and having not done by the prosecution in the present case.

We find that in the cross-examination suggestion is put to both the eye

witnesses as well as PW-7 and in answers to those suggestions all

three prosecution witnesses have categorically confirmed that the

Appellant was insane and unstable and he was abusing the passersby

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even before the occurrence of the incident in the present case. In that

view of the matter, once the IO was seized of the fact that the

Appellant had previous history of insanity, which reveals that

Appellant ought to have been subject to medical examination and the

same should have been place in evidence before the Court.

10. PW-6 - Dr. Ravi Rautji is the doctor who conducted

postmortem of the victim's dead body. In the postmortem notes

(Exh.26) he has observed the following injures:

External Injuries:-

"(1) A horizontal lacerated would of size 4 cm x 0.5 cm, gaping bone deep present over right side of scalp 08 cm above helix of right ear over temporo parietal region. (2) An inverted lacerated would of (inverted Y) of size 4 cm x 1(base) cm upper limb 5 cm x 0.5 cm and lower limb 4 cm x 0.5 cm horizontally placed. Injury was bone deep, fracturing underlying temporal bone and it was 4 cm below injury no.1. (3) The lacerated would horizontally placed of size 3 cm x 0.5 cm bone deep present on forehead 5 cm above of middle of left eyebrow surrounded by an area of about 1 cm diameter contusion.

(4) A grazed abrasion of size 6 cm x 2 cm horizontally placed over left side of cheek extending till tragus of left ear. (5) A grazed abrasion of size 3 cm x 1 cm horizontally placed on the upper 1/3rd of left side of neck."

Internal Injuries:-

"Sub scalp haematoma was present over right temporal frontal region. There was communited fracture of squamous part of right temporal over an area of 1 cm diameter, extending up to petrous ridge on right side and middle cranial fossa. Diffused subdural and subarachnoid haemorrhage was present over right temporal parietal region. Diffuse haematoma was present around cerebellum and medulla. There was laceration of cerebral cortex over all area of 1.5 cm diameter on right temporal region."

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11. We have heard Ms. Nasreen Ayubi, learned Advocate

appointed on behalf of Appellant and Mrs. J.S. Lohakare, learned APP

appearing on behalf of State and with their able assistance perused the

evidence and record of the case.

12. In the present case it is seen that after examining the first six

witnesses, Application was preferred on behalf of the Appellant before

the learned Trial Court for seeking Psychiatric Assessment Report of

Appellant. By letter dated 28.10.2014 Chief Medical officer of

Yerawada Central Prison, Pune submitted the Psychiatric Assessment

Report to the Medical Superintendent, Sassoon General Hospital,

Pune. By letter dated 21.11.2014 the Department of Psychiatry B.J.G.

Medical College and Sassoon General Hospital, Pune submitted the

Psychiatric Assessment Report of the Appellant wherein it is stated

that the Appellant was admitted in the Psychiatry Ward from

11.11.2014 to 21.11.2014 for observation and evaluation. On the

basis of observation and evaluation of Appellant the following opinion

was given:-

" His Serial Mental Status Examinations showed that he was conscious, well oriented to time, place and person. His affect was euthymic, reactive and appropriate. He did not report perceptual disturbances. His thinking revealed no psychotic, mood or anxiety features. His memory, concepts, and social judgment were intact. He was seen to have a clear understanding regarding the trial case, the court proceedings, and implications of crime. No abnormal behaviour was noted during his stay in the ward.

Impression: No active psychopathology at present."

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13. However it needs to be noted that the date of incident is

03.09.2011 whereas the date of the psychiatric report is 21.11.2014

i.e. more than 3 years after the date of incident.

14. PW-7 - Shantaram Shete is the Investigating Officer and

from his deposition it is revealed that on the date of incident he had

apprehended and arrested the Appellant and he was having

knowledge that the Appellant had mental issues/that he was mentally

retarded.

15. In view of the evidence given by the prosecution witnesses,

it is noted that the Appellant was not subjected to mental examination

with respect to the status of his mind after the incident despite the IO

having knowledge of the same. The doctrine of burden of proof in the

context of the plea of insanity is required to be proved by the

prosecution beyond reasonable doubt that the Appellant has

committed the offence with the requisite mens rea. That on the basis

of evidence placed before the learned Trial Court either by the

Appellant or by the prosecution if a reasonable doubt arises in the

mind of the Court as regards the mental insanity of the Appellant then

it is the duty of the prosecution to place adequate material on record

to discharge the doubt relating to the aforesaid factors. Before the

learned Trial Court it was the case of Appellant that a discharge card

was found on the person of the Appellant. The discharge card

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indicated that Appellant was admitted in Regional Mental Hospital,

Yerawada on 16.02.2010 and discharged on 01.05.2010 as he was

feeling better. The Incident occurred 16 months thereafter. It was

submitted that the said discharge card should be considered. However

admittedly the discharge card (old medical document) found on the

person of the Appellant was not marked in evidence and has not been

proved by the prosecution.

16. In the present case it is seen that despite having absolute

knowledge of the Appellant's insanity on the date of incident, the IO

did not subject Appellant to the medial examination after his arrest.

Subjecting the Appellant to medial examination would have proved

the status of the Appellant's mind immediately after the occurrence of

the incident.

17. Section 84 of IPC states that nothing is an offence which is

done by a person who, at the time of doing it, by reason of

unsoundness of mind, is incapable of knowing the nature of the act, or

that what he is doing is either wrong or contrary to law.

17.1. From a plain reading of said Section it is clear that what may

be generally an offence would not be so if the ingredients of Section

84 IPC are satisfied. It is an exception to the general rule.

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18. Learned Advocate appearing for the Petitioner has refereed

to and relied upon the following decisions:-

(i) State of Rajasthan Vs. Shera Ram Alias Vishnu Dutta1;

(ii) Deepak Bapurao Yedage Vs. The State of Maharashtra2;

(iii) Sarjerao Rambhau Machale Vs. The State of Maharashtra3; and

(iv) Sagar Dwarkanath Patil Vs. State of Maharashtra4.

19. In the aforesaid context, we would like to refer to and rely

upon the decision of the Supreme Court in the case Bapu alias Gujraj

Singh Vs. State of Rajasthan5 and in particular para Nos.8, 11 and 12

of the said decision which reads as under:-

"8. Under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing

1 (2012) 1 SCC 602 2 2015 ALL MR (Cri.) 4453

4 2018 4 Crimes (HC) 432 5 (2007) 3 SCC Cri. 509

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evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts.

11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, page 166 has observed that if a persons cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. This Court in Sherall Walli Mohammed v. State of Maharashtra: (1972 Cr.LJ 1523 (SC)), held that: (SCC p.79) "The mere fact that no motive has been proved why the accused murdered his wife and children or the fact that he made no attempt to run away when the door was broken open, would not indicate that he was insane or that he did not have necessary mens rea for the commission of the offence."

"12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a 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. Behaviour, antecedent, attendant and subsequent to the event, may be

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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 prefect 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."

20. In view of the above discussion and findings, we are of the

considered opinion that once PW-7 - IO became aware of the fact after

apprehending the Appellant that he was mentally retarded, it was his

lawful duty to subject the Appellant to medical examination and place

the evidence of such medical examination before the learned Trial

Court. From the record it is also seen that PW-7 has recorded

statements of PW-4 and PW-5 under Section 164 of Cr.P.C. The two

prosecution witnesses who had apprehended the Appellant

immediately after occurrence of the incident have stated that, the

Appellant had in the past beaten several people and the people in the

locality used to consider him as a mad person and neglect him.

21. In the Section 313 statement of the Appellant, he has denied

committing the offence and stated that he is suffering from mental

illness and before the incident he was admitted to the hospital for

treatment for mental illness. He has further stated that when his

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mental status was normal, on those days he worked as a labour. This

statement in addition to the fact that the IO became aware on the date

of incident that Appellant was suffering from mental issues therefore

assumes significance.

22. From the above it is discernible that no doubt through the

evidence of PW-4 and PW-5 the prosecution has established that the

Appellant inflicted two fatal blows on the victim (deceased) with the

iron angle, however through the evidence of PW-7 it is clearly evident

that the Appellant was suffering from mental disturbance/mental

disorder on the date of commission of present crime. It was the duty

of the IO on apprehending the Appellant to immediately subject him to

medical examination and place the report of such medical examination

before the learned Trial Court in evidence. Admittedly, PW-7 - IO has

not done so in the case of the Appellant after the occurrence of the

incident and after apprehending him. On the contrary, prosecution

has relied upon the medical report given by the Department of

Psychiatry B.J.G. Medical College and Sassoon General Hospital, Pune

in the year 2014 i.e. three years after occurrence of the incident. This

medical report (Exh.29) states that the Appellant was conscious and

oriented and did not suffer from any insanity. However, the report

produced on record vide Exh.29 cannot be relied upon by the

prosecution since it has been obtained after a period more than three

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years after the date of incident. It was incumbent upon the IO to

subject the Appellant to medical examination by the Psychiatrist

immediately after he was apprehended which was admittedly not

done by the IO.

23. In that view of the matter, the benefit of doubt deserves to

be given to the Appellant as there is evidence on record which shows

that the Appellant was mentally retarded at the time of incident and it

was to the knowledge of the prosecution. Hence, after carefully and

minutely scrutinizing the entire evidence available on record, it is seen

that in the present case the IO has failed to get the Appellant examined

through a Psychiatrist after the incident and produce the result of such

examination in evidence. This omission on the part of the IO creates a

very serious infirmity in the prosecution case and the benefit of doubt

therefore has to be given to the Appellant. Applying the ratio laid

down in the case of Bapu alias Gujraj Singh (supra), we are of the

considered opinion that the Appellant deserves to be given the benefit

of doubt.

24. The Appellant is accordingly acquitted from the charges

framed against him.

25. The impugned Judgment and Order dated 25.03.2015

passed in Sessions Case No.34 of 2012 stands quashed and set aside.

26. Criminal Appeal stands allowed in the aforesaid terms.

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27. We direct that, before the Appellant is released from jail he

shall be subjected to medical examination in Sassoon General Hospital,

Pune and report on the mental status of the Appellant be called for by

the Jail Authorities. If the said report certifies that the mental status of

the Appellant is normal then the Appellant shall be released forthwith

from jail. This exercise shall be carried out within a period of two

weeks from the date of receipt of this Judgment and Order. However,

if the report certifies that there is any issue with respect to the mental

status of the Appellant, the Appellant shall be referred to and treated

in the mental asylum / Mental Hospital at Pune for his ailment by the

Jail Authorities and released after his treatment is over.

28. Before parting with the Judgment, we would like to place on

record appreciation for efforts put in by Mrs. Nasreen Ayubi learned

appointed Advocate appointed by High Court Legal Services

Committee, Mumbai for espousing the cause of Appellant, she was

thoroughly prepared in the matter and rendered proper and able

assistance to the Court.

       [ MILIND N. JADHAV, J. ]                      [ A.S. GADKARI, J.]


               Digitally signed by
 AJAY       AJAY TRAMBAK
 TRAMBAK    UGALMUGALE
 UGALMUGALE Date: 2022.10.18
               17:53:32 +0530