Bombay High Court
Noor Mohammad Shaikh Habib vs The State Of Maharashtra Thr. The ... on 11 February, 2025
Author: M. S. Jawalkar
Bench: M. S. Jawalkar
2025:BHC-NAG:1330-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.117 OF 2019
APPELLANT : Noor Mohammad Shaikh Habib
Aged about -32 years, Occ- Labour,
R/o Sonala, Tah- Sangrampur, Dist.
Buldhana. (In Jail)
..VERSUS..
RESPONDENT : The State of Maharashtra through
The Officer-in-charge of police
station Tamgaon, Tah-Sangrampur,
Dist- Buldhana.
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Mr T. A. Mirza, Advocate for Appellant (Appointed).
Ms M. H. Deshmukh, APP for Respondent/State.
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CORAM : SMT. M. S. JAWALKAR AND
M. W. CHANDWANI, JJ.
RESERVED ON : 14th DECEMBER, 2024.
PRONOUNCED ON 11th FEBRUARY, 2025
JUDGMENT (PER : M. W. CHANDWANI, J.)
1. Heard.
2. The appeal is directed against the judgment of
conviction dated 26.04.2018 passed in Sessions Trial No.53 of
2015 by the Ad hoc Additional Sessions Judge, Khamgaon,
District Buldana, thereby convicting the appellant for the
offence punishable under Section 302 of the Indian Penal
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Code, 1860 (IPC) and sentenced him to suffer rigorous
imprisonment for life with a direction to pay fine of
Rs.2,000/-.
3. The appellant was convicted for the offence
punishable under Section 302 of the IPC on the allegation
that he committed the murder of his wife - Sadikabi and son -
Mudassir at his residential house. The prosecution case is that
informant PW-3 - Naseebabi Jaribkha lodged a report with
Tamgaon Police Station alleging therein that, on the
intervening night of 23.10.2014, the appellant assaulted his
wife and son by means of axe, wherein they died on the spot.
The police prepared spot panchanama after seizing a blood
stained axe having 26.5 inch. wooden handle, a pillow, a quilt,
plastic palam, green coloured night pant, blood stained soil
and soil sample etc. from the spot. The post-mortem was
conducted on the dead bodies of Sadikabi and Mudassir. On
23.10.2014 at about 14:30 hours, the accused came to be
arrested. After completion of investigation, charge-sheet came
to be filed. The accused was put on trial and at the conclusion
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of trial, the Trial Court recorded the findings of conviction
and sentenced the appellant for the aforesaid crime.
4. Having heard the learned counsel for the appellant
as well as learned Additional Public Prosecutor for
respondent/State, we have gone through the record and
judgment of the Trial Court.
5. The Trial Court in its judgment convicted the
accused relying on extra judicial confession made by the
appellant to PW-6 Ravindra Chintaman Wankhade - Police
Patil, PW-11 Tourabi Sk. Bismillah - real sister of the appellant
and other circumstances appearing on record.
6. At the outset, it is necessary to mention here that
there is no direct eye witness to the alleged incident. The
prosecution solely relied on circumstantial evidence. It is well
to remember that in cases where the evidence is of
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn in the first instance should
be fully established and all the facts so established should be
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consistent only with the hypothesis of the guilt of accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such that they exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so complete that it does not
leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show
that within all human probability the act must have been done
by the accused. A reference can be made to the case of
Hanumant vs. State of Madhya Pradesh, AIR 1952 SC 343.
7. The prosecution relied on the version of PW-6
Ravindra Chintaman Wankhade, who was working as Police
Patil. According to his version, on 23.10.2014 at about 07:30
a.m., when he was returning from his field on his motorcycle,
the appellant stopped his motorcycle and asked him to come
his house where he confessed that he committed the murder of
his wife Sadikabi and son Mudassir and made a request to
inform the police. The dead bodies of the appellant's wife and
son were lying on the ground in a pool of blood. PW-11,
Tourabi Sk. Bismillah, who is the real sister of the appellant,
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has also testified that on the day of Diwali i.e. on 23.10.2014,
the appellant had been to her house and informed her that he
killed his wife and son. Therefore, she went to his house,
where she saw the dead bodies of the appellant's wife and son.
8. No doubt, extra judicial confession is a weak piece
of evidence and the Court must ensure that the same inspires
confidence and is corroborated by other prosecution evidence.
It is also to be ensured that the confession must be voluntary
and must inspire confidence, only then it can be acted upon to
base the conviction. A reference can be made to the case of
Subramanya vs. State of Karnataka, 2022 AIR SC 5110, relied
upon by the counsel for the appellant where the Hon'ble
Supreme Court in para 54 of the case has held as under :
"54. Extra judicial confession is a weak piece of
evidence and the court must ensure that the
same inspires confidence and is corroborated by
other prosecution evidence. It is considered to
be a weak piece of evidence as it can be easily
procured whenever direct evidence is not
available. In order to accept extra judicial
confession, it must be voluntary and must
inspire confidence. If the court is satisfied that
the extra judicial confession is voluntary, it can
be acted upon to base the conviction."
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9. Considering the settled position of law that extra
judicial confession is a weak type of evidence and requires
appreciation with a great deal of care and caution, it is
necessary to scrutinize the other circumstances which have
been brought on record by the prosecution.
10. PW-6 Ravindra Chintaman Wankhade, Police
Patil further testified that after the appellant made the
confession to him, he went inside the appellant's house and
found dead bodies of his wife - Sadikabi and son - Mudassir
lying in a pool of blood on the floor. Likewise, PW-11 Tourabi
Sk. Bismillah - real sister of the appellant, on receiving
information, immediately reached the appellant's house and
witnessed the same scene as testified by PW-6.
11. PW-7 Barkatbeg Hanifbeg testified that on
23.10.2014 in the morning when he was going to his work, he
noticed crowd at the house of the appellant and saw the dead
bodies of the appellant's wife and son.
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12. PW-10 Dr. Amol Madhukar Banait, who
conducted post-mortem on the dead bodies of Sadikabi and
Mudassir, has noticed two injuries. One on the back of her
neck on the right side of the person of deceased Sadikabi and
one fracture of the cervical vertebra below the aforesaid injury.
Whereas, in the case of Mudassir, he noticed lacerated wounds
over the scalp in the right occipital region and fracture of the
right occipital bone of the scalp. He also noticed blood and
water fluid oozing from nostril of Mudassir.
13. This takes us to the spot panchanama at Exh- 45.
The axe which was seized during spot panchanama was
examined by PW-10 Dr. Amol Madhukar Banait, who opined
that the injuries on the person of Sadikabi and Mudassir are
possible by axe. The said axe had a bloodstain of group - A
and the blood group of the deceased wife is also group - A.
14. All the material available on record goes to show
that the axe which was the weapon of the alleged crime was
found at the spot of incident i.e. in the house of the appellant.
Rather, the homicidal death and spot of incident is not
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disputed by the defence at all. In this scenario, it was
obligatory on the part of the appellant to explain how his wife
and son, who were residing with him in the said house, have
been killed; particularly when the foundational fact of death of
deceased Sadikabi and Mudassir in the appellant's house,
where they were residing with him has been proved. However,
the appellant failed to provide any explanation about the
incident or the cause of death of his wife and son. We do not
find any illegality in the judgment of the Trial Court whereby
a reliance is placed upon Section 106 of the Indian Evidence
Act, 1872. Therefore, we are concurrent with the findings of
Trial Court that it is the appellant who caused the death of his
wife and son by assaulting them with an iron axe.
15. Put altogether, extra judicial confession made by
the appellant which is corroborated by other circumstances is
made voluntarily to PW-6, Police Patil and PW-11 - real sister
of the appellant. Therefore, we do not find any fault with the
findings of the Trial Court that the extra judicial confession
inspires confidence of the Court to record conviction.
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16. This takes us to the alternate submission of the
learned counsel for the appellant that the act of the appellant
is not an offence, since the appellant at the time of doing it, by
reason of his mental health, was incapable of knowing the
nature of the act. The appellant was suffering from mental
disease and was lacking mens rea, he had no motive to kill his
wife and son. According to him, even before the trial, he was
suffering from unsoundness of mind and therefore, the trial
could not begin initially. The version of PW-11 and PW-6 also
goes to show that prior to the said incident, the appellant had
committed some act of violence in a Dargah under cognitive
impairment. Therefore, the appellant is entitled to the benefit
of exception under Section 84 of the IPC.
17. Conversely, learned Additional Public Prosecutor
for respondent/State submitted that even if Section 84 of IPC
is considered, the defence has failed to prove that at the time
of offence, the appellant was incapable to do the act of such
violent nature by reason of unsoundness of mind. There is
nothing on record to suggest that the appellant at the time of
commission of the offence was suffering from any mental
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disorder. Rather, the trial was conducted after the appellant
was declared fit for trial which itself goes to show that the
appellant is in a fit state of mind. According to her, once the
offence has been proved, the burden lies on the accused to
prove that his case falls under the exception which the
appellant has failed to prove. Therefore, according to her, the
Trial Court has rightly convicted the appellant for the offence
punishable under Section 302 of IPC and prayed for dismissal
of appeal.
18. Section 84 of the IPC carves out the exception
which runs 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."
19. Section 84 of the IPC, thus, contemplates only
unsoundness of mind which naturally impairs the cognitive
faculties of mind that can form a ground of exemption from
criminal liability, therefore, for reason of unsoundness of mind
which intakes a person from knowing the nature of the act or
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that he is doing what is either wrong or contrary to law. There
is no definition of unsoundness of mind in the Indian Penal
Code, 1860.
20. On the point of criminal responsibility, Modi in his
textbook of Medical Jurisprudence and Toxicology, the 24th
Edition 2012, comments that:
"In law, responsibility means liability to
punishment. In criminal cases, where mental ill-health
is raised as a plea of irresponsibility, the burden of
proving it lies on the defence. Mental ill-health may be
proved from facts alleged or proved by the prosecution
or independently by the defence. When a
person/accused of murder is alleged to be mentally ill,
the presiding officer of the Court generally asks the
medical officer to keep the accused under observation
and to verify whether he is mentally ill or not.
The medical officer must consider the following
points before deciding whether the murder was a result
of mental ill-health.
(1) Personal History of 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 e.g., 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 law by
destroying evidence of his crime or by running away
from the scene of murder.
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(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."
21. It is a matter of record that the prosecution has not
proved that the appellant had motive to commit the murder of
his wife and son. The prosecution has also not brought on
record that the appellant was trying to run away from the spot.
Rather, the appellant himself informed PW-6 Police Patil
regarding the alleged acts committed by him. Further, there is
nothing on record to suggest that the appellant made
preparation for committing the murder of his wife and son.
The version of PW-11, real sister of the appellant, goes to show
that 8 to 9 days prior to the incident, the accused had tried to
cause destruction in a Dargah for no reason. In her deposition
also she deposed that her cousin had taken the accused to a
psychiatrist at Akola and thereafter, he was admitted to
Nagpur Mental Hospital for his treatment for six months.
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PW-8 Jaher Ali Jagir Ali deposed about the incidence of
destruction at Peer Baba Dargah by the appellant at midnight.
This witness alongwith other 2 to 3 companions controlled
the appellant and handed him over to his brother. It is also
appearing from his version that the conduct of the appellant
was similar to that of a lunatic person. It is also a matter of
record that after the arrest of the appellant, he is behind the
bars in the same matter as a lunatic person would be and vide
order dated 16.12.2014, he was sent to Mental Hospital,
Nagpur as an inpatient by the learned JMFC, Sangrampur and
he was declared unfit for trial. Therefore, the trial was also in
limbo for quite sometime.
22. A reference can be made to the case of Shrikant
Anandrao Bhosale vs. State of Maharashtra, 2003 SCC (Cri)
144, wherein the Hon'ble Apex Court held that unsoundness
of mind of accused before and after the incident for which he
underwent for treatment in hospital was a relevant fact. The
nature of burden of proof to claim benefit of Section 84, the
nature of burden of proof on the accused is not higher than
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that which rests upon a party in civil proceedings i.e.
preponderance of probability.
23. The fact that the appellant's behavior prior to and
after the incident suggested unsoundness of mind for which he
underwent treatment while in jail custody coupled with the
absence of motive, him remaining at the scene of the crime
even after reporting the incident to others and the nature of
multiple murders lead us to the reasonable inference that the
appellant was of unsound mind at the relevant time i.e. at the
time of incident. He was under the influence of a mental
disorder. Having regard to the existence of these
circumstances, it can be said that the appellant was incapable
of knowing the nature of his act by reason of unsoundness of
mind. Thus, he is entitled to get the benefit of Section 84 of
IPC and therefore, the conviction and sentence of the
appellant cannot be sustained. The appellant succeeds in
proving on the test of preponderance of probability that he is
entitled to get the benefit of the exception contemplated
under Section 84 of IPC. Therefore, the conviction recorded
by the Trial Court for the offence punishable under Section
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302 of IPC is set aside. The appellant is acquitted of offence
punishable under Section 302 of IPC.
24. When an acquittal is recorded under Section 373 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter
referred as, "the BNSS"), then the procedure contemplated
under Section 374 of the BNSS has to be followed, which runs
as under :
"374. Person acquitted on ground of unsoundness of
mind to be detained in safe custody .-
(1) Whenever the finding states that the accused person
committed the act alleged, the Magistrate or Court
before whom or which the trial has been held, shall, if
such act would, but for the incapacity found, have
constituted an offence, -
(a) order such person to be detained in safe
custody in such place and manner as the
Magistrate or Court thinks fit; or
(b) order such person to be delivered to any
relative or friend of such person.
(2) No order for the detention of the accused in a public
mental health establishment shall be made under clause
(a) of sub-section (1) otherwise than in accordance with
such rules as the State Government may have made
under the Mental Healthcare Act,2017 (10 of 2017).
(3) No order for the delivery of the accused to a relative
or friend shall be made under clause (b) of sub-section
(1) except upon the application of such relative or friend
and on his giving security to the satisfaction of the
Magistrate or Court that the person delivered shall -
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(a) be properly taken care of and prevented from
doing injury to himself or to any other person ;
(b) be produced for the inspection of such
officer, and at such times and places, as the State
Government may direct.
(4) The Magistrate or Court shall report to the State
Government the action taken under sub-section (1)."
25. In view of the above, we direct that the
appellant shall be kept in safe custody in Amravati Jail till
the State Government takes action in the matter who may
decide where the appellant is to be kept pending action
under Sections 377 and 378 of the BNSS as the exigency of
the case may require. While taking decision, the State
Government shall have due regard to the examination of the
appellant by Civil Surgeon/Head of Mental Hospital/Head
of Psychiatry Department and report by the said Authority.
26. The order passed today be communicated to the
State Government in terms of Section 374 for taking further
action in terms of Sections 377 and 378 of the BNSS. A
copy of this judgment shall also be sent to the Inspector
General of Prisons who is empowered in terms of Section
375 to perform and discharge the functions under Sections
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377 and 378 of BNSS for further necessary action in the
matter. The said authorities be asked to submit report of
action taken from time to time till it is necessary. The first
report of action taken be placed before this Court within
three months from the date of receipt of this judgment. The
matter be accordingly listed on board thereafter.
27. The fees of appointed learned counsel be
quantified as per rules.
(M. W. CHANDWANI, J.) (SMT. M. S. JAWALKAR, J.)
Tambe.
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 11/02/2025 18:08:47
