Vasu Poojary vs State Of Karnataka
2022 Latest Caselaw 2503 Kant

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                                                         CRL.A No. 1211 of 2017


                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                                            PRESENT

                               THE HON'BLE MR. JUSTICE B. VEERAPPA
                                              AND
                                THE HON'BLE MRS. JUSTICE M. G.UMA

                                CRIMINAL APPEAL No.1211 OF 2017

                   BETWEEN:

                   1.   VASU POOJARY,
                        S/O. LATE BADU POOJARY,
                        AGED ABOUT 45 YEARS,
                        COOLIE WORK,
                        R/O. NELLIGUDDEMANE,
                        YALATHUR VILLAGE,
                        MANGALORE TALUK-575 001.
                        (JUDICIAL CUSTODY)
                                                                  ...APPELLANT
                   (BY SRI. NARAYANASWAMY H R., ADVOCATE)

                   AND:

                   1.   STATE OF KARNATAKA,
                        CPI MULKI CIRCLE POLICE,
                        REPRESENTED BY S.P.P.
                        HIGH COURT BUILDING,
                        BANGALORE-560 001.
Digitally signed
by MALATESH                                                    ...RESPONDENT
KC                 (BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)
Location: High
Court of
Karnataka               THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                   374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
                   ASIDE THE JUDGMENT DATED 18.4.2016 AND SENTENCE
                   DATED 20.4.2016 PASSED BY THE I ADDITIONAL DISTRICT
                   AND SESSIONS JUDGE, D.K., MANGALURU IN S.C.NO.41/2010
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                                               CRL.A No. 1211 of 2017


-  CONVICTING THE APPELLANT       FOR                THE     OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC .

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA J., MADE THE FOLLOWING:

                            ORDER

The present Criminal Appeal is filed by the

appellant/accused who is of unsound mind and incapable

knowing the act he is doing, against the judgment of conviction

dated 18.04.2016 and order of sentence dated 20.04.2016

made in S.C.No.41/2010 on the file of the I Additional District

and Sessions Judge, Dakshina Kannada, Mangaluru, sentencing

the accused to undergo imprisonment for life and to pay fine of

`5,000/-, in default, to undergo further imprisonment for a

period of six months, for the offence punishable under Section

302 of the Indian Penal Code.

2. The brief facts of the case is that, the Station House

Officer of Mulki Police Station registered a case in Crime

No.126/2009 on the basis of the complaint filed by P.W.1-

Prema, who is none other than the sister of the accused and

resident of Nelligude of Yalatur village, working as a beedi roller

and a coolie. She was residing with her mother-Rathi Poojarthi

CRL.A No. 1211 of 2017

and sister-Vimala. In the complaint it is stated that her eldest

sister Shantha died about 20 years back and her brother

Shekhar left the house after his marriage and is staying at a

different place. The accused Vasu is her younger brother and

he is working in a Hotel at Mangaluru and is suffering from

mental illness and he is taking medicine. The accused used to

visit the house of the complainant frequently without any

intimation or without any reason. It is also stated that her

sister-Vimala is also a mentally ill person and she is staying in

the house and the youngest sister Akhila is working in a Hostel

at Mangaluru. Mother of the complainant- Rathi Poojarthi is also

suffering from mental illness. The complainant used to look

after her mother and sister, out of her earnings and used to get

medicines from Wenlock Hospital. After providing food and

medicines to her mother and sister, complainant used to go to

the house of one Maggibai in the night. It is further stated that

on 10.12.2009 in the evening the complainant provided food

and mediciens to her mother and sister at about 7.00 pm.

Thereafter, she went to the house of said Maggibai. After

rolling beedi for some time, she slept in the house of said

Maggibai and came to her house at about 6.00 am. At that

CRL.A No. 1211 of 2017

time, she found that accused Vasu was in the house and since

he used to get enraged due to his illness on some occasions,

she did not speak to him and went to kitchen and prepared tea

and ganji (rice meal) and gave the same to the accused, her

mother and sister. Later, complainant went to Patlakere to

submit the beedies at about 7.00 am and returned home at

8.00 am. Since she had to go for coolie work, she went to the

kitchen and when she was about to have her meals, noticed

that accused-Vasu was standing near the doors and he was

seriously looking at her and his hands were soaked in blood.

The complainant suspected that accused had caused some

injuries to her mother and sister, fearing that he may cause

trouble to her, she went to the house of Vinnibai and informed

her that the hands of Vasu were drenched in blood and

therefore, she went to make phone call to Mangaluru to her

sister. Accordingly she informed her sister-Akhila and then

went to the house of one Stella D'Souza for work. At about

11.00 am, Akhila-P.W.2 came from Mangaluru and they

together went to the house and found that accused-Vasu was

sleeping and on the other side mother-Rathi and sister-Vimala

were sleeping. When they went nearer, found that there were

CRL.A No. 1211 of 2017

incised injuries on the neck of Rathi Poojarthy and Vimala and

were bleeding. Both of them had died and a small katthi(knife)

was also lying with blood stains at the spot. The accused-Vasu

was also sleeping with the dead bodies when they went in. The

said Vinnibai, Stella also came to the spot and they informed

one Pramod and others. Accordingly, P.W.1 lodged complaint

as per Ex.P.1 to the jurisdictional police. It is further stated

that whenever mentall illness of the accused was on its peak,

he used to create galata in the house and used to trouble the

deceased persons. Due to the same reason, the accused had

come from Mangaluru during night and after the complainant

went to beedi branch, the mental illness of the accused had

increased and he committed the murder of mother-Rathi and

sister-Vimala using Knife-M.O.1 by causing injuries on the neck

and therefore, sought to take suitable action against the

accused.

3. Based on the complaint-Ex.P.1, the jurisdictional police

registered a case in Crime No.212/2010 against the accused for

the offence punishable under Section 302 of the Indian Penal

Code. After investigation, charge sheet was filed. After

committal of the case, the learned Sessions Judge secured the

CRL.A No. 1211 of 2017

presence of the accused, sent him to NIMHANS for medical

examination to know as to whether the accused was fit to stand

for trial. After evaluation on three occasions, and after

treatment, the accused was certified to be fit to stand trial with

a rider that accused should take the medicines regularly, failing

which, he would become unfit to stand for trial. Therefore, the

jail authorities were directed to provide necessary medicines to

the accused regularly. Thereafter, since the accused submitted

that he is unable to engage the services of counsel to argue on

his behalf, defence counsel was appointed at State expenses

under the rules framed under the provisions of the Code of

Criminal procedure. The learned Sessions Judge framed the

Charge on 02.02.2013 against the accused for the offence

punishable under Section 302 of the Indian Penal Code. The

accused pleaded not guilty and claimed to be tried.

4. In order to prove its case, the prosecution, examined in

all 13 witnesses as P.Ws.1 to 13 and marked the documents

Exs.P.1 to P.13 and Material Objects M.Os.1 to 15. On behalf

of the defence, Exs.D.1 and 2 were marked. After completion

of the evidence of prosecution witnesses, the statement of the

CRL.A No. 1211 of 2017

accused as contemplated under Section 313 of the Code of

Criminal Procedure was recorded. The Court felt that the

Medical Officer who treated the accused at NIMHAS on three

occasions has to be examined to understand the nature of

mental illness suffered by the accused and thereby, doctor was

summoned and was examined as P.W.13. During the course of

examination, the entire case sheet of the NIMHAS pertaining to

the accused was marked as Ex.P.13.

5. Based on the aforesaid pleadings, the learned Sessions

Judge framed two points for consideration. After considering

both oral and documentary evidence on record, the learned

Sessions Judge, recorded a finding that the prosecution has

proved beyond reasonable doubt that the death of the

deceased Rathi Poojarthi and Vimala was a homicidal death and

that the accused has committed the murder of the deceased

Rathi Poojarthi and Vimala by stabbing and injuring them on

neck with knife-M.O.1 and thereby, committed an offence

punishable under Section 302 of the Indian Penal Code and

sentenced the accused to undergo imprisonment for life and to

pay fine of `5,000/-, in default, to undergo further

CRL.A No. 1211 of 2017

imprisonment for a period of six months. Hence, the present

Appeal is filed by the accused.

6. We have heard the learned counsel for the parties.

7. Sri H.R.Narayanaswamy, learned counsel appointed by

the High Court Legal Services Committee to assist the Court on

behalf of the appellant/accused, contended with vehemence

that the impugned judgment of conviction and order of

sentence passed by the learned Sessions Judge convicting the

accused for the offence punishable under Section 302 of the

Indian Penal Code is erroneous, contrary to the material on

record and cannot be sustained and is liable to be set-aside.

Learned counsel further contended that the learned Sessions

Judge has not considered the fact that the entire family of the

accused was suffering from mental illness and the accused

committed the offence by the reason of his unsoundness mind.

Therefore, accused is entitled to the benefit under the

provisions of Sections 334 and 335 of the Code of Criminal

Procedure. As per the provisions of Section 84 of the Indian

Penal Code, nothing is an offence which is done by a person

who, at the time of doing it, by reason of unsoundness of mind,

CRL.A No. 1211 of 2017

is incapable of knowing the nature of the Act, or that he is

doing what is either wrong or contrary to law. Therefore,

learned Sessions Judge is not justified in the convicting the

accused who is of unsound mind and incapable of knowing the

nature of the act done. On that ground alone, the impugned

judgment of conviction and order of sentence is liable to be set-

aside.

8. Learned counsel further contended that Ex.P.1-complaint

clearly depicts that the entire family of the accused suffers from

mental illness and one of his sister has already committed

suicide. The deceased persons i.e., mother and sister of the

accused including the accused were suffering from mental

illness. The complainant used to earn livelihood by rolling

beedies and doing coolie work and used to provide food and

medicines to accused and deceased persons. The complaint

itself clearly depicts that the accused has committed the

offence without knowing the act he is doing and by reason of

unsoundness of mind . The learned Sessions Judge erroneously

convicted the accused and therefore, sought to allow the

Criminal Appeal.

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CRL.A No. 1211 of 2017

9. Per contra, Sri Vijayakumar Majage, learned Additional

State Public Prosecutor, after thorough reading of the entire

case papers including the evidence of P.Ws.1 and 2-sisters of

the accused, P.W.13-Doctor who examined the accused,

rightly, fairly submits that the learned Sessions Judge should

not have convicted the accused as he was suffering with mental

illness and not capable of knowing the nature of the act he is

doing. The fair submission made by the learned Additional

State Public Prosecutor based on the peculiar facts and

circumstances of the present case is placed on record and

appreciated by this Court.

10. In view of the aforesaid rival contentions urged by the

learned counsel for the appellant and the fair submission made

by the learned Additional State Public Prosecutor, the only point

that arises for our consideration is:

"Whether the learned Sessions Judge is justified in convicting the accused who is of unsound mind and incapable of knowing the nature of act he is doing, for the offence punishable under Section 302 of the Indian Penal Code?

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CRL.A No. 1211 of 2017

11. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the appellant

and the fair submission made by the learned Additional State

Public Prosecutor, including the original records, carefully.

12. The complaint-Ex.P.1 lodged by P.W.1-Prema who is none

other than the sister of the accused has specifically stated in

the complaint that her mother Rathi, Sister Vimala (deceased

persons) and accused Vasu were suffering from mental illness.

She was earning livelihood by doing coolie work and rolling

beedis. She used to maintain the accused and deceased

persons by providing food and medicines. After committing the

offence, the accused was sleeping with the dead bodies and

M.O.1-Knife used for committing the offence was found near

the dead bodies. On the basis of the complaint lodged by

P.W.1, the jurisdictional police registered a case and after

investigation, filed Charge sheet. The very complaint lodged by

P.W.1 clearly depicts that the entire family of the accused,

except one brother and sister, are suffering from mental illness.

P.W.1 used to do coolie work and beedi rolling work in order to

maintain her family consisting of mother, sister and accused,

who are all mentally ill.

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CRL.A No. 1211 of 2017

13. This Court being the Appellate Court, in order to re-

appreciate the entire material on record, it is relevant to

consider the evidence of prosecution witnesses and the

documents relied upon.

(i) P.W.1-Prema-complainant, who is none other than the sister of the accused, daughter of deceased Rathi Poojarthi and sister of deceased Vimala, lodged complaint as per Ex.P.1. Reiterating the contents of the complaint. P.W.1 specifically deposed that she was earning livelihood by doing coolie work and rolling beedies and used to provide food and medicines to the accused and deceased persons. On the unfortunate day, when she came home, noticed the accused and a knife with blood stains. Thereafter, she went to the house of P.W.3-Vinni D'Souza and called her sister Akhila to come who was staying at Mangaluru. After arrival of P.W.2-Akhila, she went home and noticed that the accused was sleeping with the dead bodies of her mother and sister and saw M.O.-1 knife near the dead bodies. Accordingly, lodged the complaint. She

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CRL.A No. 1211 of 2017

identified M.Os.1 to 13. In the cross- examination, P.W.1 deposed that her mother, sister and accused were suffering from mental ill ness and used to take treatment regularly. Whenever the mental illness aggravated the accused used to wander during night. She also deposed that on the unfortunate day, when she went inside the house, accused was sleeping with the dead bodies. She denied the suggestion that M.O.1 has nothing to do with the offence. P.W.1 further denied that due to aggravated mental illness, deceased persons quarreled among themselves and died. She further voluntarily stated that accused himself has killed her mother and sister. If accused is released, he will kill all the persons in the family. She denied the suggestion that the accused has not committed the offence and she has given false complaint. The witness supported the prosecution case. Nothing has been elicited in her evidence to disprove the case of the prosecution.

(ii) P.W.2-Akhila, sister of the accused and P.W.1 corroborated with the evidence of P.W1 and deposed that when she along

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with P.W.1 went to the house, noticed that her mother and sister were dead, there were injuries on their neck and accused was sleeping with the dead bodies. When police came to the spot, accused confessed that he killed his mother and sister. The witness identified M.Os.1 to 13. In the cross-examination, she admitted that the deceased persons and the accused were suffering from mental illness and they were taking treatment regularly.

Whenever the mental illness aggravated, the accused used to roam during night. The witness supported the prosecution case. Nothing has been elicited in her evidence to disprove the case of the prosecution.

(iii) P.W.3-Mrs.Vinni D'Souza, neighbour of P.W.1 deposed that she knows P.Ws.1 and 2 and their deceased mother and sister. P.W.1 used to work as coolie by doing house hold work. The accused-Vasu is the brother of P.Ws.1 and 2. She deposed that when they went inside the house, the accused was sleeping with the dead bodies of his mother and sister. She is witness to Exs.P.2 and 3-mahazars and identified

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M.Os.1 to 13. In the cross-examination, she admitted that the accused and deceased persons were mentally ill. Whenever mental illness aggravated, accused used to roam and scream during night. She identified M.O.1 and supported the prosecution case. Nothing has been elicited in her evidence to disprove the case of the prosecution.

(iv) P.W.4-Pramod Kumar, Member of the Zilla Panchayath deposed that on receiving information from the police, he went to the spot. The accused was also present there. He is the witness to mahazars-Exs.P.2 and 3 and identified M.Os.1 to 13. Ex.P.4 is the seizure mahazar. He stated that the accused had worldly knowledge but was mentally ill. In the cross-examination he admitted that the accused, his mother and sister were suffering from mental illness and used to take medicines regularly and supported the prosecution case. Nothing has been elicited in his evidence to disprove the case of the prosecution.

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(v) P.W.5-Madhava, Police Constable, deposed that he carried the FIR to the concerned Court, identified Ex.P.1 and supported the prosecution case. Nothing has been elicited in his evidence to disprove the case of the prosecution.

(vi) P.W.6-Prema, women police constable, deposed that she escorted the dead bodies for post mortem and supported the prosecution case.

(vii) P.W.7-Dr.Geethalakshmi, Scientific Officer, Forensic Science Laboratory, Mangaluru, who examined M.Os.1 to 11 and 13 and issued the report Exs.P.6 to 8 and supported the prosecution case.

(viii) P.W.8-Raghava, ASI, deposed that he registered a case in Crime No.126/2009 against the accused for the offence punishable under Section 302 of the Indian Penal Code. The FIR was marked as Ex.P.5 and supported the prosecution case.

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(ix) P.W.9-Muniswamy Neelakanta, Police Inspector, deposed that he received the complaint- Ex.P.1 from P.W.1 at the spot and forwarded the same to P.W.8-

Investigating Officer through P.W.12, conducted mahazar as per Exs.P.2 and 3, and supported the prosecution case.

(x) P.W.10-Shivaprakash R.Naik, Investigating Officer deposed that he was working as Circle Inspector from 2009 to 2011; when he was in the police station, received a phone call that the accused has killed his mother and sister. Immediately, he went to the spot along with PSI, inspected the spot, drawn mahazars as per Exs.P.2 and 4, recovered M.Os.1 to 7 and 14, identified the rough sketch-Ex.P.9, seized M.O.13. The dead bodies were sent to post mortem and supported the prosecution case.

(xi) P.W.11-Dr.SadashivaShyanbog, conducted post mortem on the dead bodies, issued the reports Exs.P.10 and 11 and specifically deposed that at the time of examination of the dead bodies, he found three external injuries on the dead body of

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Rathi Poojarthy and one injury on the dead body of Vimala. His opinion was marked as Ex.P.12. He deposed that the injuries found on the dead bodies could be caused if assaulted with M.O.1 and supported the prosecution case.

(xii) P.W.12-Bennichan, Police Constable, deposed that he carried the complaint- Ex.P.1 and handed over it to P.W.8 and supported the prosecution case.

(xiii) P.W.13-Dr.Suresh          Badamath,   Additional
     Professor     of       Psychiatry,      NIMHANS,

identified the accused present before the Court. He deposed that after examination, he found that accused is suffering from Psychosis disease (schizophrenia) and he treated the accused three times in 2011 as per the directions of the Court. He further deposed that the mental illness of the accused will get aggravated day by day, if proper treatment is not given. If the accused takes the medicines regularly, he can lead normal life through out his life. If the medicines are stopped, the disease may recur. He has to meet a psychiatrist

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once in a month. The medicinal expenses may come to `1,500/- to `2,000/- per month. He further deposed that this kind of disease will be usually hereditary. The patients with hereditary background will not respond positively to the treatment. Looking to the background of the accused, since his mother and sister also had similar disease and already one of his sister with similar disease committed suicide, the accused may again become violent if the medicines are not consumed regularly. Therefore, accused has to be monitored and looked after under continuous observation. Otherwise, the disease may recur and he may cause causality either to himself or to others. He further deposed that he is unaware as to whether any NGO in our State is taking care of the people like accused with the aforementioned disorder. But the accused can be housed in the Dharwad Mental Hospital, if directed by the Court. He further deposed that, since he examined the accused after lapse of 14 months from the date of the incident, he cannot say the mental state of the accused on the date of the incident. But, since it is stated in the FIR that the

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accused was sleeping along with the dead bodies of his mother and sister and had not concealed the weapon used in the offence, it can be inferred that the accused was suffering from mental illness on the date of the incident. But he cannot say it accurately. The custody of the persons with mental illness can be handed over to the family only after getting an undertaking before the Court. In the cross-examination, the doctor has deposed that the violent behaviour will be under control when the patient is under medication. If the medication is discontinued, the mental illness will get aggravated. To come to the conclusion that the accused is suffering from schizophrenia, he was examined as inpatient for a period of 5 weeks in 2011, 6 weeks in 2013 and 8 weeks in 2015. He has given the opinion based on serial mental status examination, ward observation and by using psychometry. It is not true to suggest that a person suffering from schizophrenia will not assault by aiming at a particular part of the body. Under the illusion that some body may assault them, there will be

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chances of such people assaulting the people around them.

14. Based on the aforesaid oral and documentary evidence on

record, the learned Sessions Judge proceeded to convict the

accused for the offence punishable under Section 302 of the

Indian Penal Code. A careful perusal of the complaint-Ex.P.1

lodged by P.W.1, clearly depicts that family members of P.W.1

i.e., her mother, sister and brother-accused were suffering

from mental illness. Another sister committed suicide due to

mental illness. P.W.1 was earning livelihood by doing coolie

work and rolling beedies and was taking care of her family

members who were suffering from mental illness. The said

aspect is reiterated in the complaint and evidence of P.Ws.1

and 2. The doctor-P.W.13 has deposed in categorical terms

that accused is suffering from mental illness-schizophrenia. He

examined the accused for a period of 5 weeks in 2011, 6 weeks

in 2013 and 8 weeks in 2015. But still the accused is suffering

from schizophrenia. The history of the family of the accused

depicts that they are all suffering from mental illness. It is also

stated by the doctor that if proper treatment is not given to the

accused, the mental illness will get aggravated and accused will

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not be able to recognize what he is doing. The evidence of

P.Ws.1 and 2 clearly depicts that on the unfortunate day, after

killing his own mother and sister, the accused was sleeping

with the dead bodies. This clearly depicts that on the date of

the incident, the accused was not in sound state of mind and

was incapable of knowing the nature of the act he is doing.

The said evidence has not been considered by the learned

Sessions Judge.

15. P.W.11-Dr.Sadashiva, Medical Officer, Community Health

Centre, Mulki, who conducted the post mortem on the dead

body of Rathi Poojarthy, issued the post mortem report-

Ex.P.10, wherein, it is stated the following injuries were found

on the dead body.

1. A horizontal incised wound present on the anterior lateral aspect of neck, 1" proximal to right clavicle, 5" long, 1½" width, 1" deep wound is spindle shaped, gaping, edges are smooth, clean cut and well deepened evated. Wound is deeper medially and shallower laterally. Cervicle muscles on anterio lateral aspect of neck on right side, right carotid vascular bundle, trachea and oesophagus are cut.

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2. An incised wound, horizontal present 1 ½"

distal to previous wound, 2 ½ long, ¾"wide, ¼" deep.

3. Two horizontal incised wounds present over anterior aspect of right shoulder, ½" apart, 1½"apart, 1½" x ¼" size each.

16. In Ex.P.11-post mortem report, it is stated that the

following injuries were found on the body of deceased Vimala:

"A horizontal incised wound present on the anterior lateral aspect of neck, 1½"proximal to right clavicle, 3"long, ½"width, 1"deep wound is spindle shaped, gaping, edges are smooth, clean cut and well defined, everted. Cervicle muscles on anterio lateral aspect of neck on right side, right carotid vascular bundle, trachea and oesophagus are cut."

17. In both the reports, the Doctor has opined that the death

is due to hemorrhage and shock, due to injuries sustained. The

doctor has also given opinion (Ex.P.12) that the injuries found

on the dead bodies could be caused if a person is assaulted

with the knife-M.O.1. In order to prove the case of the

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prosecution that the accused committed murder of the

deceased knowingfully well that he is causing death of his

mother and sister, has not placed material on record to prove

the motive for the murder. But, complaint-Ex.P.1 filed by

P.W.1 clearly depicts that deceased persons and accused were

suffering from mental illness and were under regular

medication. The evidence of P.W.1 also depicts that she used

to provide food and medicines to the accused and deceased

persons. The accused used to become violent like which it

happened on the date of the incident. Therefore, on seeing the

accused holding knife in his hand, P.W.1 ran away and went to

the house of P.W.3. Thereafter, she called her sister who was

residing at Mangaluru. After her arrival, they went to the spot

together and found that accused had killed their mother and

sister and was sleeping with the dead bodies along with knife-

M.O.1. It clearly depicts that on the date of the incident,

accused was in unsoundness of mind and was incapable of

knowing the nature of the act he is doing. The said evidence

and the incident narrated in the complaint are corroborated by

the evidence of P.W.13-doctor, who has categorically stated

that the accused was suffering from mental illness

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(schizophrenia) and he was treated for the said disease in the

year 2011 (five times), 2013 (six times) and 2015(eight times).

He further stated that on the date of the incident, accused was

suffering from mental illness.

18. The learned Sessions Judge committed an error in

convicting the accused, ignoring the provisions of Section 84 of

the Indian Penal Code, which reads 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.

A careful reading of the said provision makes it clear 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 he is doing what is

either wrong or contrary to law.

19. In the present case, as seen from Ex.P.1-complaint it is

clearly stated by P.W.1 who is none other than the sister of the

accused that, in her family, the accused, deceased mother and

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sister and another sister were mentally ill and they were taking

treatment regularly and she used to look after them by

providing food, shelter and medicines. It is further deposed

that on the date of the incident, when P.W.1 along with P.W.2

went to the house, they found that accused was sleeping with

the dead bodies of his mother and sister, after killing them with

M.O.1-knife. If the accused had an intention to commit

murder, he could have concealed the weapon M.O.1. This

clearly depicts that accused was of unsound mind and incapable

of knowing the act that he is doing. Therefore, the accused is

entitled to the benefit of the provisions of Section 84 of the

Indian Penal Code.

20. Our view is fortified by the dictum of the Hon'ble

Supreme court in the case of Devidas Loka Rathod vs. State

of Maharashtra1, wherein, the Hon'ble Supreme Court

acquitted the accused who was convicted for the offence

punishable under Section 302 of the Indian Penal Code, by

extending the benefit of Exception under the provisions of

Section 84 of the Indian Penal Code holding that the

prosecution failed to lead any evidence in rebuttal and was not

(2018)7 SCC 718

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able to establish its case beyond reasonable doubt.

Paragraphs-10 to 14, 21 and 22, reads as under:

10. The law undoubtedly presumes that every person committing an offence is sane and liable for his acts, though in specified circumstances it may be rebuttable. The doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 : AIR 1964 SC 1563 : (1964) 2 Cri LJ 472] : (AIR p. 1568, para 7) "(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.

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(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."

11. Section 84 IPC 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, as observed in Surendra Mishra v. State of Jharkhand [Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232] , after which the onus shall shift on the prosecution to establish the

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inapplicability of the exception. 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, as observed in State of Rajasthan v. Shera Ram [State of Rajasthan v. Shera Ram, (2012) 1 SCC 602 : (2012) 1 SCC (Cri) 406] , as follows: (Shera Ram case [State of Rajasthan v. Shera Ram, (2012) 1 SCC 602 : (2012) 1 SCC (Cri) 406] , SCC p. 614, para 19) "19. ... Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability."

12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal v. State of M.P. [Ratan Lal v. State of M.P., (1970) 3 SCC

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533 : 1971 SCC (Cri) 139] , as follows: (SCC pp. 533-34, para 2) "2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 : AIR 1964 SC 1563 : (1964) 2 Cri LJ 472] it was laid down that '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 which rests upon a party to civil proceedings'."

13. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to 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, as observed in Vijayee

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Singh v. State of U.P. [Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : 1990 SCC (Cri) 378]

14. We shall now consider the sufficiency of other medical and defence evidence to examine if a reasonable doubt is created with regard to the mental state of the appellant at the time of commission of the assault on a preponderance of probability, coupled with the complete lack of consideration of the evidence of PW 14. Merely because an injured witness, who may legitimately be classified as an interested witness for obvious reasons, may have stated that the appellant was not of unsound mind, cannot absolve the primary duty of the prosecution to establish its case beyond all reasonable doubt explaining why the plea for unsoundness of mind taken by the accused was untenable.

21. We are therefore of the considered opinion, that the appellant has been able to create sufficient doubt in our mind that he is entitled to the benefit of the exception under Section 84 IPC because of the preponderance of his medical condition at the time of occurrence, as revealed from the materials and evidence on record. The prosecution cannot be said to have established its case beyond all reasonable doubt. The appellant is therefore

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entitled to the benefit of doubt and consequent acquittal. The appeal is allowed. He is directed to be released from custody unless wanted in any other case.

22. In view of our conclusions and findings based on the medical evidence with regard to the appellant, it is considered necessary to give further directions under Section 335 or 339 of the Criminal Procedure Code, as the case may be, so that the appellant is not exposed to vagaries and receives proper care and support befitting his right to life under Article 21 of the Constitution of India. A copy of this order be sent to the District Legal Services Authority, Akola for the needful.

21. The material on record clearly depicts that the incident

has occurred on 11.12.2009. At that time, accused was under

treatment. The accused has taken treatment in 2011 and the

P.W.13-doctor has specifically stated that the accused is

suffering from incurable schizophrenia and has taken treatment

in the year 2011 (five times), 2013 (six times) and 2015(eight

times).

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22. The evidence of P.Ws.1 and 2 coupled with the evidence

of P.W.13-Dr.Suresh Badamath, material documents Exs.P.1-

complaint, Exs.P.10 and 11-postmortem reports clearly depicts

that, as on the date of the incident, the accused was suffering

from unsoundness of mind and was incapable of knowing the

nature of the act he was doing. The prosecution has failed to

prove that the accused was in a fit state of mind and was

capable of knowing the act what he was doing. In the absence

of any material to the effect that when the offence was done,

the accused was in sound state of mind and was capable of

knowing the act he was doing against his own mother and

sister who were also suffering from mental illness, he cannot be

convicted for the said offence. The material also depicts that

after the offence, the accused was sleeping with the dead

bodies with the knife used in commission of the offence.

23. The accused is entitled to acquittal on the ground of

unsoundness of mind as contemplated under the provisions of

Section 334 of the Code of Criminal procedure, which reads as

under:

"334. Judgment of acquittal on ground of unsoundness of mind.--Whenever any person is

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acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not."

24. It is well settled that a mental disorder is a syndrome

characterized by clinically significant disturbance in an

individual's cognition, emotion regulation, or behaviour that

reflects a dysfunction in the psychological, biological or

developmental process underlying mental functioning. Mental

disorders are usually associated with significant distress in

social, occupational, or other important activities. 'Severe

Mental Illness' under the 'International Classification of

Diseases (ICD)', which is accepted under Section 3 of the

Mental health Care Act, 2017, generally include:

1. schizophrenic and delusional disorders,

2. mood (affective) disorders, including depressive, manic and bipolar forms,

3. neuroses, including phobic, panic and obsessive- compulsive disorders,

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4. behavioural disorders, including eating, sleep and stress disorders,

5. personality disorders of different kinds.

25. Therefore, we hold that accused is entitled for acquittal

on the ground of unsoundness of mind. Once the accused is

acquitted, he has to be placed in safe custody by sending him

to Lunatic Asylum and obligation is on the part of the State

Government to provide food and proper treatment for his

mental illness, as contemplated under Section 335 of the Code

of Criminal procedure.

26. The Hon'ble Supreme Court, while considering the

provisions of Sections 300 and 84 of the Indian Penal Code, in

the case of Shrikant Anandrao Bhosale vs. State of

Maharashtra2 at paragraphs 4 and 20, held as under:

4. On appreciation of evidence, the appellant was found guilty by the Sessions Court. The evidence was again appreciated by the High Court. The judgment of the Sessions Court was affirmed. We have heard learned counsel and have perused the record. In our opinion also, there is enough

AIR 2002 SC 3399

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cogent evidence to prove that the appellant killed his wife.

20. Mr Arun Pednekar relies upon Sheralli Wali Mohammed v. State of Maharashtra [(1973) 4 SCC 79 : 1973 SCC (Cri) 726] to contend that the mere fact that the appellant did not make any attempt to run away or that he committed the crime in daylight and did not try to hide it or that the motive to kill his wife was very weak, would not indicate that at the time of commission of the act the appellant was suffering from unsoundness of mind or he did not have requisite mens rea for the commission of the offence. It is correct that these facts itself would not indicate insanity. In the present case, however, it is not only the aforesaid facts but it is the totality of the circumstances seen in the light of the evidence on record to prove that the appellant was suffering from paranoid schizophrenia. The unsoundness of mind before and after the incident is a relevant fact. From the circumstances of the case clearly an inference can be reasonably drawn that the appellant was under a delusion at the relevant time. He was under an attack of the ailment. The anger theory on which reliance has been placed is not ruled out under schizophrenia attack. Having regard to the nature of burden on the appellant, we are of the view that the appellant has proved the existence of

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circumstances as required by Section 105 of the Evidence Act so as to get the benefit of Section 84 IPC. We are unable to hold that the crime was committed as a result of an extreme fit of anger. There is a reasonable doubt that at the time of commission of the crime, the appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus, he is entitled to the benefit of Section 84 IPC. Hence, the conviction and sentence of the appellant cannot be sustained.

27. The Hon'ble Supreme Court, while considering the

provisions of Sections 300 and 84 of the Indian Penal Code and

Sections 105 and 114 of the Evidence Act, 1872, in the case of

Sheralli Wali Mohammed vs. State of Maharashtra3 (4

Judges) held that the prosecution must prove beyond

reasonable doubt that the accused committed the offence with

requisite mens rea and burden of proving that always rests on

the prosecution from the beginning till the end of the trial.

There is a rebuttable presumption that the accused was not

insane, when he committed the crime, in the sense laid down

by Section 84 of the Indian Penal Code. The accused may

rebut it by placing before the Court all the relevant evidence

AIR 1972 SC 2443

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oral, documentary or circumstantial, but the burden of proof

upon him is no higher than that rests upon a party to civil

proceedings. 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.

28. Unfortunately, in the present case, the learned Sessions

Judge proceeded to shift the entire burden on the accused,

when the prosecution failed to prove beyond reasonable doubt

that the accused has committed offence without mens rea. The

material on record clearly depicts that the prosecution has not

proved beyond reasonable doubt the initial burden of proving

that the accused has committed the murder intentionally. In

the absence of the same, the impugned judgment of conviction

and order of sentence passed by the learned Sessions Judge

cannot be sustained.

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29. For the reasons stated above, the point raised for

consideration in the present Appeal has to be answered in the

negative holding that the learned Sessions Judge is not justified

in convicting the accused for the offence punishable under

Section 302 of the Indian Penal Code and sentencing him to

undergo imprisonment for life with fine and default clause. The

accused is entitled to the benefit of Section 84 of the Indian

Penal Code, as the material on record clearly depicts that the

accused was a person with unsound mind and was incapable of

knowing the nature of the act he was doing. Thereby, the

accused is entitled to acquittal on the ground of unsoundness of

mind, as contemplated under Section 334 of the Code of

Criminal Procedure.

30. For the reasons stated above, we pass the following:

ORDER

(i) The Criminal Appeal is hereby allowed.

(ii) The impugned judgment of conviction dated 18.04.2016 and order of sentence dated 20.04.2016 made in S.C.No.41/2010 on the file of the I Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, is hereby set-aside.

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(iii) The appellant/accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code.

(iv) Since the appellant who is of unsound mind and incapable of knowing what he is doing, has committed the murder of his own mother and sister, and has been acquitted by this Court, he has to be detained in the safe custody in any Lunatic Asylum, as provided under Section 335(2) of the Code of Criminal Procedure.

Sd/-

JUDGE

Sd/-

JUDGE kcm

BVJ & MGUJ 21.02.2022 ORDER

We request Dr.Suresh Badamath, Professor of Psychiatry, NIMHANS, and his team to examine the appellant, and after examination to detain the appellant at Manasa Kendra, Near C.V.Raman Hospital, Government TB and CD Hospital, Old Madras Road, Bengaluru-560 038. The State Government, in

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particular, the Director, Department of Empowerment of Differently Abled and Senior Citizens, was directed to take all steps to ensure proper stay, food and medicine till the mental health of the appellant is improved and he is certified to be fit for discharge from Manasa Kendra.

A copy of this Judgment shall be sent to the Director, Department of Empowerment of Differently Abled and Senior Citizens, Government of Karnataka, for needful action.

Sd/-

JUDGE

Sd/-

JUDGE

kcm