Bombay High Court
Satish Vasant Mantre vs The State Of Maharashtra on 12 January, 2024
2024:BHC-AUG:560
CriAppeal-111-2021
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 111 OF 2021
Satish s/o Vasant Mantre,
Age 26 yrs., Occ. Labour,
R/o Someshwar Nagar,
Parli Vaijnath, Dist. Beed. ... Appellant
[Orig. Accused]
versus
1. State of Maharashtra
Through Police Station Officer,
Police Statin, Parli City, Tq. Parli
Vaijnath, Dist. Beed.
2. XYZ ... Respondents
.....
Mr. Uttam L. Telgaonkar with Mr. N. U. Telgaonkar, Advocates for the
appellant.
Mr. S. M. Ganachari, APP for Respondent No.1-State.
Mr. Vivek M. Lomte, Advocate for Respondent No.2.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 05.01.2024
Pronounced on : 12.01.2024
JUDGMENT :
1. Convict for offence under Section 307 of the Indian Penal Code
[IPC], is hereby assailing the judgment and order passed by learned
Additional Sessions Judge, Ambajogai dated 15.02.2021 in Special
POCSO Case No. 08/2017 which was tried for the offences punishable
under Sections 307, 326, 354-A, 341, 504 of IPC, Sections 8 and 12 of
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the Protection of Children from Sexual Offences Act, 2012 [POCSO
Act] and Sections 3(1)/181 of the Motor Vehicles Act, 1988 on being
challaned by Parali City Police Station.
2. Appellant was chargesheeted on the premise that, victim was a
student. He used to tease her, follow her and therefore victim's uncle
passed the information to the parents of accused, who gave him
understanding. However, on 23.01.2017, when victim was going
along with her friend, appellant intercepted her way, made her fall
down and thereafter inflicted knife blows causing her grievous
injuries. She was shifted to various hospitals and FIR was lodged on
the basis of which crime bearing no. 38 of 2017 was registered which
was investigated by PW8 API Kale and on completion of investigation,
appellant was duly chargesheeted and tried by learned Additional
Sessions Judge, who accepted the case of prosecution and convicted
the appellant as spelt out in the operative part of the order which is
now assailed before us on various grounds raised in the appeal memo.
SUBMISSIONS
3. Elaborating his arguments, learned counsel for the appellant
would strenuously submit that apparently it is false implication as
there is no convincing, cogent and reliable evidence. He would submit
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that there is overwhelming evidence to show that appellant was a
lunatic and in such state of mind, alleged occurrence has taken place.
That, such crucial aspect has not been correctly appreciated by
learned trial court. That, except interested testimony of friend, there
is no other independent eye witness account. That, father of victim
was in service of police department and therefore possibility of false
implication cannot be ruled out. He would point out that statement of
victim is not recorded promptly, nor statement of her so called friend
is recorded by the IO Officer promptly in spite of availability. That,
history is about being stabbed by "somebody". That, learned trial
court has not considered and appreciated the answers given by the
prosecution witnesses while under cross. That, even there are
suspicious circumstances on the point of so called recovery of articles
from the spot. Further, according to him, even spot is shown by
informant who has hearsay information. Prosecution though claims
that stone was handled by appellant, same is not recovered. Even
prosecution could not demonstrate to whom the alleged footwear
lying on the scene of occurrence belonged to. Further, according to
him, none of the medical experts has given information about the case
to be MLC. Doctor failed to give measurement of the injuries.
Resultantly, for all above reasons, it is his submission that learned
trial court ought not to have accepted the case of prosecution and
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ought not to have held appellant guilty and so he seeks indulgence of
this court for setting aside the impugned judgment.
Learned counsel has placed reliance on the decisions in
Lakchandra and others v. State of Uttar Pradesh (2014) 85 ACC 131;
Sachin v. State of Maharashtra (2019) 3 AIR Bom R (Cri) 386;
Sakariya v. State of M.P. 1991 Cri.L.J. 1925 and Pawan Kumar v.
State and Another 2019 SCC OnLine Del 10452.
4. Per contra, learned APP as well as learned counsel representing
the victim, both opposed the case advanced by the appellant on the
ground that there is direct eye witness account. There is history of
teasing, stalking victim and therefore understanding being given to
appellant. As regards the plea of insanity is concerned, they both
seriously questioned the same by narrating the sequence of the events
comprising of appellant riding vehicle, following the injured and
intercepting victim and specifically targeting her. According to them,
false defence of insanity has been put forth and there is no strong
foundation in support of such defence. According to them, evidence of
victim and her friend, who was accompanying her at the time of
incident, is itself sufficient to discard the plea and rather fasten the
guilt. That assault was life threatening and only because of timely
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treatment, victim survived. It is thus submitted that, with such quality
of evidence, learned trial court has committed no error whatsoever in
holding the charges proved and in convicting the appellant and hence
they too prayed to dismiss the appeal.
5. Learned counsel for the victim sought reliance on the following
cases:
1. Kishor Jaisingh Sonwane v. State of Maharashtra ; 2018 (3)
Mh.L.J. (Cri.) 368.
2. Surendra Mishra v. State of Jharkhand ; (2011) 11 SCC 495.
3. Hari Singh Gond v. State of M.P. ; AIR 2009 SC 31.
4. Vitthal s/o Abasaheb Chavan v. State of Maharashtra ; 2009 (1)
Mh.L.J. (Cri.) 534.
5. Norman Cajetan Nazareth Fernandes v. State of Goa ; 2018 (5)
Mh.L.J. (Cri) 662.
6. Dahyabhai Chhaganbhai Thakkar v. State of Gujarat ; AIR 1964
SC 1563.
7. State of M.P. v. Ahmadulla ; AIR 1961 SC 998.
6. Being first appellant court, Section 374 of the Code of Criminal
Procedure empowers this court to re-examine, re-analyze and re-
appreciate the entire evidence adduced by prosecution in trial court
and therefore this court undertakes such exercise to ascertain whether
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findings reached at by learned trial court are in consonance with the
evidence or whether there is apparent error or perversity as alleged by
appellant.
EVIDENCE ON BEHALF OF PROSECUTION
PW1 Informant, cousin of victim claims to have received phone
call regarding victim being assaulted by someone and being
admitted in the hospital of Dr. Kale and so he rushed there.
On reaching there, his relative Vasant Ravanrao Gite
informed him that Satish Mantre i.e. present appellant
inflicted knife blow on victim. Therefore, after interacting
with the doctor, he approached Parali City Police Station and
lodged FIR which he identified to be at Exhibit 28.
While under cross, he is asked about his place of residence,
about residence of father of victim and that of accused. Then
he is questioned about morning walk undertaken by him that
day; as to after how much time he reached the hospital and
left the hospital. He admitted that he lodged FIR at 3.00 p.m.
He denied knowing whether victim went to school and
admitted that he personally did not see the incident.
PW3 Victim in her evidence at Exhibit 42 stated that in 2017 she
was in 8th standard. That, three months prior to the incident,
appellant approached her and tried to talk her and he also
teased her, of which she passed information to her father and
uncle who gave understanding to the appellant as well as his
family. According to her, on 23.01.2017 when she and her
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friend were proceeding on bicycle to the school, appellant
intercepted her near Girwalkar Hospital at 7.30 a.m. He had
come on a Luna which he parked across them. Her friend
tried to move from his left side and she herself tried to move
from right side. Accused came running and pushed her down.
He started abusing her and whisked out a knife and assaulted
on the left side of her navel, left wrist, thumb of right hand
and palm of right hand and he gave two blows on left side of
her chest and also on her upper lip below nose. According to
her, he was shouting that he will kill her. He also lifted a
stone lying nearby, but she and her friend shouted for help,
people gathered and caught hold of accused. According to
her, somebody with the help of school identity card informed
the incident to her father on phone and took her in the
vehicle to the hospital of Dr. Kale. Thereafter, she was taken
to other hospital where she was treated up to 01.02.2017.
In her cross, she answered and admitted that her father was
in police department and attached at Parali Police Station.
She gave school timings and admitted that accused resided in
Someshwar Nagar but denied knowing him. However, she
admitted that she used to occasionally see him. She admitted
that she did not lodge report about the incident which took
place three months back. She flatly denied that as accused
was lunatic, she and her father decided not to lodge
complaint regarding the earlier incident. Then she is
questioned about her route to school and surroundings on
the way to school. She admitted that there use to be traffic on
the road. Then she is questioned about discharge from
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hospital. Omission is brought regarding "accused was
shouting that he will kill". She denied knowing about accused
to be lunatic and undertaking any treatment. She also denied
that he assaulted her under spell of lunacy. Rest is all denial.
PW4 Friend of victim deposed that on 23.01.2017 around 7.15
a.m., when she and victim were going to school on bicycle
and when they reached Girwalkar Hospital, accused
appellant came on a Luna from behind them and halted in
front of their bicycle. She stated that she went ahead from his
left side whereas victim went ahead from his right side. He
pushed victim, who fell down from the bicycle and then,
according to her, he took out a knife and inflicted blows on
stomach, thumbs of both hands, left chest and left foot of
victim. Even she stated that he lifted a stone and so she
shouted and persons gathered there and caught hold of
accused and her friend was taken to hospital. She stated that
police recorded her statement.
While under cross, this witness answered and admitted that
victim and accused reside in same lane but she denied
knowing him thoroughly or having ever met him. She is
unable to state at what distance accused stopped his Luna.
She also denied that accused did not know riding Luna or he
to be a lunatic and assault was under mental shock.
PW5 P.S.O. Khade, who was on duty on 23.01.2017 and he has
noted and lodged FIR and registered crime on the basis of the
same.
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PW6 Dr. Wange, had occasion to examine the victim girl.
According to him, she was conscious and oriented and she
gave history with respiratory distress and about she being
stabbed by somebody. He claims to have found multiple
injuries, two of them to be major, one on left side of upper
chest and other on the abdomen around umbilicus. He
claimed that the wound on the chest was sutured. He
identified the injury certificate issued by him to be at Exhibit
51. He gave details of the injuries, its size and opined that
injuries are possible by sharp weapon. According to him,
injuries at sr. nos. 1, 3, 6 and 7 were grievous in nature and
were fresh and caused within 24 hours. He specifically stated
that injuries at sr. nos. 1, 3, 6 and 7 were life threatening
injuries and independently were sufficient and capable of
causing death. He opined that knife shown to him is capable
of causing injuries.
While under cross, he admitted that first aid was given by Dr.
Kale. He admitted that measurement of sutured wound
cannot be given and the surgeon who put up the sutures is
the best person to depose to that extent. He answered that
Exhibit 51 was not issued on the day of examination but after
treatment. He admitted that identification marks are required
to be noted but the same was not done by him. He also
admitted that from the appearance of the article knife, it
seems to be ordinary knife used for household purpose. He
answered that he cannot state the injuries mentioned in
Exhibit 51 could be caused by article knife.
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PW7 Dr. Gosawi, in his evidence at Exhibit 58/C stated that he
was posted at Regional Mental Hospital, Yerwada, Pune and
that he was directed to remain present in the Court with
documents pertaining to jail inmates. He deposed that he
personally examined appellant. He also identified Exhibit 60
i.e. medical certificate dated 27.06.2017 issued by Regional
Mental Hospital, Yerwada, Pune. He stated that it was issued
by his signature and he identified the same. He also
identified medical certificate dated 27.06.2017 issued by his
senior and he identified it to be at Exhibit 62. He also
identified Medical History Sheet Exhibit 63. Based on the
report, he deposed that appellant was admitted on
20.06.2017. He was produced before expert committee
comprising of Chief Judicial Magistrate, Superintendent of
Regional Mental Hospital, Yerwada and the committee
having interacted with under-trial prisoner, posed questions
to understand his mental condition and gathered his general
awareness and thereafter, committee unanimously opined
that he was fit to face trial. He identified the certificate
Exhibit 64 to that extent.
Even above medical expert, a psychiatrist was subjected to
cross wherein he admitted that appellant was under his
observation. He answered that information in Exhibit 63 was
as per the details provided by the appellant and his brother.
He admitted that questions posed at sr. nos. 10 to 14 were
answered by appellant as "not known" and that in column
no.4 there was a remark about "poor self care, irrelevant talk,
disturbed behaviour". He further answered that appellant
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was treated from 27.06.2017 onwards when he was certified
to be mentally unsound and that he was diagnosed to be
suffering from Schizophrenia Chronic which is a mental
decease and he admitted that it is not a continuous decease
and waexs and wanes. He admitted that expert committee
mostly comprises of a psychiatrist and two social workers.
According to him, as per record, appellant was under
treatment from 27.06.2017 to 25.09.2017. He denied that
the committee was not constituted as per law. He admitted
that in psychiatric cases, opinion about mental state is
formed on the basis of previous mental condition and current
mental state. On re-examination, he answered that he treated
appellant from 27.06.2017 and thereafter having found him
fit, he produced him before the committee. Again he was
cross-examined by learned counsel for the accused wherein
he answered that appellant was under treatment till
25.09.2017 and he denied about bringing documentary
evidence.
PW8 API Kale is the Investigating Officer [IO], who narrated the
steps taken by him till filing of the chargesheet.
EVIDENCE ON BEHALF OF THE ACCUSED-APPELLANT
DW1 Sandip deposed that he was working as a Medical Officer and
that accused is his real elder brother. According to him, in
2004 while facing SSC examination, his brother was
assaulted and thereafter he did not come home for two days.
When he returned, there was change in his behaviour. He
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used to keep mum, keep on staring, did not utter a word with
anyone, used to suddenly start shouting and even attempted
to physically assault family members and was therefore taken
to Dr. Subhash Kale, a psychiatrist and treated with
medication and as his condition did not improve, he was
taken to Vivekanand Hospital at Latur in 2006 and thereafter
treated by Dr. Pratap Panhale. He was even administered
shock treatment. Dr. Panhale's treatment continued from
2006 to 2017 and every fortnightly/monthly he was required
to be taken to Dr. Panhale who prescribed him medicines.
However, his condition was stable only during period of
medication and not thereafter. He further deposed that they
used to keep him either tied or locked to avoid untoward
incident.
In cross at the hands of learned APP, DW1 answered that no
offence of assault on appellant was registered and no
inquiries were made as to who assaulted. He admitted that
appellant had passed SCC examination with good marks but
he volunteered that the assault was on the last day of
examination. He denied knowing whether appellant cleared
11th standard examination, but he admitted that he secured
admission in collage for 11th and 12th standard course and
further obtained admission in Vaidyanath College, Parali. He
admitted that his brother/appellant used to do his daily
chores like having food, wearing cloths normally but he
denied that he participated in functions and marriages. To a
question whether his brother was treated by admitting in the
hospital, he answered that he was admitted for a day. To
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another question he answered that Dr. Panhale has
diagnosed his brother to be suffering from schizophrenia.
Rest is all denial.
DW2 Dr. Pratap Panhale, also a medical practitioner, at Exhibit 99/
C has elaborately deposed about he to be a specialist in
psychiatric branch and practicing at Latur. The sum and
substance of his evidence is that since May 2006 appellant
was visiting his clinic with complaints like fixed gaze,
irrelevant talk, remaining quite, raising suspicion. According
to him, appellant was diagnosed to be suffering from
schizophrenia disorder. In his entire examination-in-chief and
cross from para 2 to 17 he has narrated various dates on
which visits were paid and medicines were duly prescribed,
sometimes discontinued on the basis of condition on that
particular day and again re-administering the medicine and
adjusting his doses on the basis of complaints. He is also
cross-examined by learned APP as well as re-examined by
defence and he has placed on record and identified the
medical prescriptions advised by him.
ANALYSIS
7. The sum and substance of the charge and prosecution case is
that appellant was interested in victim and so he followed her, teased
her and therefore understanding was given to him to mend his ways
but on 23.01.2017, he followed victim who was proceeding to school
on bicycle and he intercepted her way, initially pushed her and
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thereafter inflicted knife blows and was about to thrust/hit stone to
her but was caught hold by mob. Therefore, for above charges
appellant was tried and finally held guilty by learned trial court.
The fundamental grounds on which appeal is preferred are
that, firstly there is no independent, cogent, reliable eye witness
account. Secondly, accused to be insane and that he is entitled for
protection in view of Section 84 of the IPC. Thirdly, there is no
evidence that it was a case of an attempt to commit murder or to
cause grievous injury.
In support of above defence, accused has adduced evidence of
two witnesses at Exhibits 85/C and 99/C, who are his brother and
medical practitioner i.e. psychiatrist respectively.
8. Consequently, specific defence raised in trial court as well as
before this court during appeal is that appellant was a schizophrenic
and therefore insane and is consequently entitled for legal protection
accorded by virtue of Section 84 of IPC. Though other grounds are
raised like no cogent, reliable evidence; only interested witness to be
examined; and that informant has set law into motion on hearsay
information, they do not assume much significance and the plea of
insanity is required to be carefully and meticulously dealt with.
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9. For proper comprehension, Section 84 is reproduced which is as
under:
"84. Act of a person of unsound mind.-
Nothing is an offence which is done by a person who, at
the time of doing it, by reason of unsoundness of mind,
is incapable of knowing the nature of the act, or that he
is doing what is either wrong or contrary to law."
10. Since the landmark judgment of Dahyabhai Chhaganbhai
Thakkar v. State of Gujarat (supra), there are numerous landmark
judgments viz. Ratan Lal v. State of M.P. (1970) 3 SCC 533 ; Bapu @
Gujraj Singh v. state of Rajasthan (2007) 8 SCC 66, Hari Singh Gond
(supra) ; Surendra Mishra (supra) ; Devidas Loka Rathod v. State of
Maharashtra (2018) 7 SCC 718 and very recent case of Prakash Nayi
alias Sen v. State of Goa (2023) 5 SCC 673, and in all above cases
which still holds the field, there is reference to the case of Dhayabhai
(supra) wherein while dealing with Section 84 of IPC, and the Rule of
evidence as contained in Section 4 and Section 105 of Evidence Act,
the Hon'ble Apex Court held and observed as under:
"5...... It is a fundamental principle of criminal jurisprudence
that an accused is presumed to be innocent and, therefore, the
burden lies on the prosecution to prove the guilt of the accused
beyond reasonable doubt. The prosecution, therefore, in a case
of homicide shall prove beyond reasonable doubt that the
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accused caused death with the requisite intention described in
S. 299 of the Indian Penal Code. This general burden never
shifts and it always rests on the prosecution. But, S. 84 of the
Indian Penal Code provides that nothing is an offence if the
accused at the time of doing that act, by reason of unsoundness
of mind was incapable of knowing the nature of his act or what
he was doing was either wrong or contrary to law. This being an
exception, under S. 105 of the Evidence Act the burden of
proving the existence of circumstances bringing the case within
the said exception lies on the accused, and the court shall
presume the absence of such circumstances. Under S. 105 of the
Evidence Act, read with the definition of "shall presume" in S. 4
thereof, the court shall regard the absence of such circumstances
as proved unless, after considering the matters before it, it
believes that the said circumstances existed or their existence
was so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that they did exist. To put it in other words, the accused will
have to rebut the presumption that such circumstances did not
exist, by placing material before the court sufficient to make it
consider the existence of the said circumstances so probable that
a prudent man would act upon them. The accused has to satisfy
the standard of a "prudent man". If the material placed before
the court, such as, oral and documentary evidence,
presumptions, admissions or even the prosecution evidence,
satisfies the test of "prudent man", the accused will have
discharged his burden. The evidence so placed may not be
sufficient to discharge the burden under S. 105 of the Evidence
Act, but it may raise a reasonable doubt in the mind of a judge
as regards one or other of the necessary ingredients of the
offence itself. It may, for instance, raise a reasonable doubt in
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the mind of the judge whether the accused had the requisite
intention laid down in S. 299 of the Indian Penal Code. If the
judge has such reasonable doubt, he has to acquit the accused,
for in that event the prosecution will have failed to prove
conclusively the guilt of the accused. There is no conflict
between the general burden, which is always on the prosecution
and which never shifts, and the special burden that rests on the
accused to make out his defence of insanity.
6. ... ...
7. The doctrine of burden of proof in the context of the plea of
insanity may be stated in the following propositions: (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 S. 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."
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11. Keeping above settled legal principles in mind, we advert to the
evidence in case in hand. Evidence of victim and her friend is very
crucial and therefore this court critically analyzed such testimonies,
and on steering through the evidence of both these witnesses it is
emerging that, three months prior to the incident in question
appellant had tried to talk with the victim and had also teased her.
She claims to have informed her father, who in turn informed her
uncle Shivshankar and understanding was given to the family of
appellant. Regarding the incident, her testimony is that on
23.01.2017, when she and her friend were riding bicycle to reach
school, around 7.30 a.m. when they had reached the hospital of Dr.
Girwalkar, appellant came on his Luna and he parked it across them
and so her friend tried to proceed from the left side while victim
started to proceed from his right side. At that time victim alleged that
accused came running and pushed her down. After abusing her he
took out a knife and gave blows on her navel, left wrist, thumb of
right hand and palm of right hand and he also gave two blows on the
left side of chest as well as upper lip below the nose. Consequently,
her testimony categorically shows that accused had approached her
getting armed with a deadly weapon like knife. His intention and
mens rea is thereby manifest. Victim girl has further deposed that
appellant was shouting that he will kill her and saying so, he even
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lifted a stone lying there but when she and her friend shouted for
help, people gathered and caught hold of him and further untoward
incident was averted.
While under cross victim who admitted accused to be residing
in the very vicinity where she too resided, flatly denied him to be
insane. On complaint being made to his relatives for earlier episode of
following and teasing, the second episode under question seems to
have taken place. Her evidence has remained steadfast throughout
the cross.
Her friend PW4 also is found to be corroborating victim as she
too stated that they were intercepted by accused who came on Luna
and when they tried to leave the place from his left and right side
respectively, he pushed victim and on her fall he inflicted knife blows
on stomach, thumbs of both hands, left chest, left foot and even lifted
a stone but on shouts, persons gathered and had caught him. The
cross faced by her shows that there is no serious dispute about
occurrence eye witnessed by her.
Consequently, the net result upon critical analysis of evidence
of victim and her friend is that accused followed victim riding a
vehicle, intercepted her way, parked the vehicle and out of the two
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girls, he targeted victim whom he was interested in. Therefore, such
material rules out the possibility of he to be under the spell of any
lunacy. When such plea is put forth, courts are concerned with legal
insanity and not mental insanity. Legal insanity means at the time of
commission of an act, the person is suffering from mental illness and
is also deprived of reasoning power. Section 84 of IPC comes to the
rescue only when it is shown by the accused that he was of unsound
mind even at the time of the act and was incapable of knowing the
very nature of the act, its consequences and further was not aware
that the act which he was doing is wrong or contrary to law. If such
aspects are substantiated, only then it can be said that the person is
entitled for protection under Section 84 of IPC.
12. The sheet anchor on behalf of appellant accused is his own
brother DW1 and also DW2, a medical expert who had allegedly
treated appellant.
Evidence of brother DW1 at Exhibit 85 is about some
occurrence taking place with appellant in 2004 and being treated by
DW2 for a period from 2006 to 2017. DW2, a psychiatrist has not
carried record of treatment but has apparently deposed on the basis
of medical prescriptions. He is not speaking about treatment being
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extended up to 2017. Rather it is only for a period up to 03.07.2016
and cross of DW2 shows that thereafter he never visited this doctor.
Para 9 and 10 of the examination-in-chief of DW2 shows that though
appellant was visiting him, there were complaints of only decreased
sleep but there was increase in goal directed activities. On 06.05.2012
and 15.07.2012, there were mere complaints of feeling sleepish,
boredom or excessive sleep. Around 03.07.2016, he was on self
medication. Psychiatrist doctor has deposed that there is no cure to
such ailment but it can only be medically controlled.
Here we are concerned with legal insanity i.e. during the
occurrence dated 23.01.2017 or in proximity to it, whether there is
any relapse of said disorder so as to consider him to be under
influence of the same. Evidence of DW1 brother is apparently of little
or no use in this regard as his evidence is not specific that prior to
23.01.2017, appellant brother was under the impact or influence of
said disorder. DW2 himself has admitted that such mental ailments
are periodic. Therefore, taking the same into account, and the
evidence of very brother DW1 that appellant was admitted in 11 th and
12th standard and was undertaking education and having admitted
that he was doing daily chores on his own, it cannot be said that there
was legal insanity on or around 23.01.2017.
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13. It would be also desirable to deal and discuss the relevant
observations of the of Hon'ble Apex Court in the case of Bapu @
Gujraj Singh (supra), wherein it has been held and laid down that,
"under section 84 of IPC, a person is exonerated form the liability
from 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. 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. It has been further laid
down that mere abnormality of mind or partial delusion, irresistible
impulse or compulsive behaviour of psychopath affords no protection
under Section 84 of IPC...."
Thus, legal position as stands accepted is that the crucial point
of time for ascertaining the state of mind of accused is when the
offence was committed. Underscoring these essentials, here, from
above discussed material, at the cost of repetition, it is stated that
there is nothing on record to show that on or just before the
occurrence appellant was under the spell of said mental disorder.
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14. It is pertinent to note and is hereby reiterated that appellant
had come on a Luna moped, i.e. himself riding it, had followed the
victim while she was going to school with her friend, had intercepted
her way and even parked his vehicle in front of the girls. Evidence of
victim and her friend is unanimous about they trying to escape from
left and right side respectively but appellant had specifically rushed
towards victim and had targeted her by taking out a deadly weapon
like knife which he had brought along with him. He also allegedly
issued threats to kill and had inflicted several blows and even
attempted to hit stone by lifting it. Therefore, such sequence if taken
into consideration, it cannot be said that he was deprived of power of
reasoning or to understand the implications of his deeds. Utterance by
way of threat to kill, his intention and mens rea is explicit.
Considering the attending circumstances available in the evidence of
victim and her friend, in the considered opinion of this court,
prosecution had discharged its primary burden of proving the charge
of attempt to kill. Plea of insanity has not been proved or
probabilized. Taking evidence of appellant accused into consideration,
he has also not succeeded in creating reasonable doubt that at the
time of incident or even in proximity to said date, he was under the
spell of insanity so as to extend benefit of Section 4 of IPC which is
statutorily available in such cases. While in prison, he was again
CriAppeal-111-2021
observed and examined by experts' committee, who on its due
satisfaction, has certified him to be fit to face trial. This is yet another
contributing factor which goes in favour of prosecution and goes
against appellant.
15. This court has gone through the rulings relied by learned
counsel for appellant, ex facie the citations are on totally different
aspects and provisions of penal code. None of the citations placed on
record is touching the contentious issues involved in the case in hand
and therefore cannot be taken aid of and discussed.
16. No perversity is brought to the notice of this court in
appreciation of evidence as well as the findings and conclusion
reached at by the trial court. There being no merits in the appeal, the
same deserves to be dismissed. Hence I proceed to pass the following
order:
ORDER
The appeal is hereby dismissed.
[ABHAY S. WAGHWASE, J.]
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