Sikkim High Court
Pradeep Khatiwara vs State Of Sikkim on 24 April, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 24th April, 2024
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No.03 of 2021
Appellant : Pradeep Khatiwara
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. T. R. Barfungpa, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was tried for the offence of murder under
Section 300 of the India Penal Code, 1860 (hereinafter, the ―IPC‖),
punishable under Section 302 of the IPC, for causing the death of
one Mikmar Lepcha and one Dhan Keshi Tamang at a cardamom
drying shed, situated at Sumindang, Upper Dzongu, North Sikkim,
on 01-12-2019. The Court of the Learned Sessions Judge, North
Sikkim, at Mangan, by the impugned Judgment, dated 26-11-2020,
in Sessions Trial Case No.02 of 2020 (State of Sikkim vs. Pradeep
Khatiwara) convicted the Appellant of the offence as charged. Vide
Order on Sentence, dated 23-12-2020, the Convict was sentenced
to undergo rigorous imprisonment for life. Fine of ₹ 5,000/-
(Rupees five thousand) only, was imposed on him, with a default
clause of imprisonment.
Pradeep Khatiwara vs. State of Sikkim
2. The offence came to light when Exhibit 1, the First
Information Report (FIR) was lodged by the Complainant, Ranshor
Limboo, (PW-3) of Chadey, North Sikkim, on 03-12-2019, before
the Mangan Police Station, North Sikkim. Based on Exhibit 1, a
case was registered against the Appellant who was suspected to
have committed the offence and investigation was taken up by PW-
14, Police Inspector (P.I.), Sher Bahadur Manger. Charge-Sheet
was submitted against the Appellant under Section 300 of the IPC
for committing the murder of the two victims named above. The
Appellant took the plea of ―not guilty‖ to the charge framed against
him by the Learned Trial Court, for two counts of murder. The
Prosecution sought to establish its case beyond a reasonable doubt
by examining fourteen witnesses. The Learned Trial Court
thereafter examined the Appellant under Section 313 of the Code
of Criminal Procedure, 1973 (hereinafter, the ―Cr.P.C.‖), during
which he admitted to having assaulted the victims, in turns, with a
wooden plank and having thrown the dead body of Mikmar Lepcha
from a cliff, while Dhan Keshi Tamang was assaulted with an axe
and her body tumbled down, below the cardamom drying shed.
His defence was that, he was first attacked by the two victims upon
which he retaliated. He sought to examine three witnesses. DW-1,
his mother deposed that when the Appellant was studying in Class
VIII, he accidentally knocked over a lamp and a fire broke out in
their house, after which his mental status became impaired. That,
he was treated by a Psychiatrist in Singtam. That, the Appellant
used to be in possession of his medical documents. DW-2, the
Psychiatrist, who treated the Appellant, deposed that he had
prescribed medication for Psychosis to a person named Pradeep
Khatiwara. DW-3 was the sister of the Appellant who claimed that
Pradeep Khatiwara vs. State of Sikkim
in the year 2011-12, she had taken him to a Psychiatrist as the
Appellant was depressed. Thereafter, DW-2 in 2018 had
prescribed medication for the Appellant and he was taken to the
Psychiatrist four times. DWs 1, 2 and 3, at that stage furnished
no documentary evidence to substantiate the facts regarding the
mental status of the Appellant as deposed by them. The Learned
Trial Court on consideration of all the evidence on record convicted
the Appellant as delineated above.
3. The Prosecution narrative is that the Appellant along
with the two deceased persons were employed by PW-2 at
Sumindang, North Sikkim, after the Diwali of 2019, for harvesting
the cardamom fruits in his field. All three resided in the cardamom
drying shed of PW-2. About a week prior to the incident, the
deceased Mikmar Lepcha had complained to PW-2 of having been
threatened with death by the Appellant who had wielded his
bamphok (Machete) in front of him. PW-2 had gone to the shed
and settled the matter. However, on the evening of 01-12-2019
Mikmar Lepcha was assaulted with a wooden plank, while Dhan
Keshi Tamang was stuck with an axe, by the Appellant, resulting in
the death of both the persons.
4. In Appeal, the arguments raised by Learned Counsel
for the Appellant before this Court were that the question of
unsoundness of mind of the Appellant ought to have been first
determined by the Learned Trial Court before proceeding with the
trial. The process not having been so done, the trial is vitiated.
Besides, the Appellant has clearly stated in his Section 313 of the
Cr.P.C. statement that the deceased had attacked him first, where
upon he retaliated and he had no motive to kill them. That, apart
from the plea of insanity, the case being one of circumstantial
Pradeep Khatiwara vs. State of Sikkim
evidence as the Prosecution case was devoid of eye witnesses to
the incident, the evidence furnished by the Prosecution was not
consistent with the guilt of the Appellant to establish the chain of
circumstances against him. That, one Numberi Rai was
instrumental in informing the Complainant, PW-3, that of the three
persons who had been working in the cardamom drying shed, only
one could be seen and that he had a sharp weapon in his hand. He
was not made a Prosecution witness for which an adverse inference
can be drawn against the Prosecution. Exhibit 1 was lodged on 03-
12-2019, on which date the arrest of the Appellant was also
effected and he was remanded to Judicial Custody. About five
months thereafter, on 12-05-2020, the Appellant was referred for
medical treatment, from Judicial Custody, as he complained of
inability to sleep, he was suspicious that people were talking about
him and was also irritable. DW-4, the Senior Consultant
Psychiatrist, at STNM Hospital, prescribed him medication, for
Psychosis and Depression. That, DW-2, the Psychiatrist had earlier
treated the Appellant on 27-11-2017 as a patient of Psychosis and
had last treated him in April, 2018 as revealed in his evidence. The
evidence of DW-2 finds corroboration in that of DW-3, who
vouched for the fact that the Appellant was being treated for
mental health problems by DW-2, who had prescribed medication
to him. DW-2 had advised her (DW-3) to listen to the problems of
the Appellant. Consequently, it is evident that the Appellant was a
patient of Psychosis, entitling him to the benefit of Section 84 of
the IPC. That, on an application filed by the Appellant under
Section 391 of the Cr.P.C. before this Court, pending the Appeal,
this Court on 02-08-2023 ordered that, the evidence of DW-2 be
recorded by the concerned Court, for the limited purpose of
Pradeep Khatiwara vs. State of Sikkim
exhibiting the relevant medical documents. Pursuant thereto, DW-2
was examined on 19-10-2023 and necessary documents were
exhibited. Reliance was placed on Exhibit D2/DW-2 the certificate
issued by DW-2, dated 08-06-2023, wherein it was mentioned that
the Appellant had been treated by DW-2 on 27-11-2017 and 18-
12-2017. Exhibit D3/DW-2 the certified copy of the page of the
―New Patient's Register‖, dated 27-11-2017, was also identified by
DW-2, where the name of the Appellant appeared at sl.no.52. That,
Exhibit D4/DW-2, the certified copy of the relevant page of the
follow up register of the District Hospital, Singtam, dated 18-12-
2017 bore the name of the Appellant at Serial No.60. That, in fact
DW-4, the Senior Consultant Psychiatrist, also deposed as he had
been treating the Appellant in State Central Prison, Rongyek, since
May 2020. The witness identified Exhibit D1/DW-4 as the Prisoner
Treatment Booklet with his signatures on it. DW-4 vouched for the
fact that the Appellant is under his treatment. DW-4 also stated
that on 02-02-2022 at around 1400 hours, the Appellant had tried
to commit suicide, by hanging, but the timely intervention of his
cell inmates prevented the event. On the order of DW-4, the jail
authorities admitted the Appellant to the STNM Hospital, at
Gangtok, on 02-02-2022 for counseling and treatment from where
he was discharged on 11-02-2022 and returned to Judicial
Custody. It was canvassed by Learned Counsel that, both DW-2
and DW-4 have deposed that Psychosis can recur and such patients
require regular treatment for an extended duration. Conceding
that there were no materials to show that he was unstable at the
time of incident, Learned Counsel however urged that, the offence
committed on 01-12-2019 was a result of the recurrence of his
illness as his treatment had ceased by then. Consequently, there
Pradeep Khatiwara vs. State of Sikkim
can be no denial of the fact that the Appellant was suffering from
mental illness preceding, attending and following the offence of
murder. Learned Counsel fortified his submissions with reliance on
Shrikant Anandrao Bhosale vs. State of Maharashtra and contended
that the burden of proof that the Appellant was of unsound mind
and therefore incapable of knowing the consequences of his acts is
clearly established by DWs 1, 2, 3 and 4, along with the
documentary evidence exhibited. That, the Learned Trial Court
ignored the initial evidence to which it was privy and failed to
extend the benefit of Section 84 of the IPC to the Appellant on
which count reliance was placed on Devidas Loka Rathod vs. State of
Maharashtra . It was contended that the Prosecution has failed to
lead any evidence in rebuttal, apart from its inability to establish its
case beyond a reasonable doubt. The assailed Judgment being
perverse and against the weight of evidence, deserves to be set
aside.
5. Learned Additional Public Prosecutor for the State-
Respondent while seriously repelling the arguments advanced by
the Learned Counsel for the Appellant, contended that, the offence
was heinous with no evidence furnished by the Appellant to prove
that at the time of the incident, he was suffering from mental
illness. Conceding that evidence was indeed furnished by the
Appellant to establish that he was suffering from mental health
issues preceding and following the incident, it was reiterated that
no proof was furnished to indicate insanity attending the incident.
Relying on the evidence of PW-8, Dr. O. T. Lepcha, who conducted
the postmortem on the deceased victims, it was urged that several
injuries were inflicted on the persons of the deceased, mercilessly,
AIR 2002 SC 3399
(2018) 7 SCC 718
Pradeep Khatiwara vs. State of Sikkim
revealing the mens rea of the Appellant. That apart, it is clear
from Exhibit 13, the medical examination of the Appellant, dated
03-12-2019, that he was in sound health with no reference
whatsoever to any mental infirmity. That, the plea of insanity, as
correctly noted by the Learned Trial Court was not taken by the
Appellant, during investigation, enquiry and trial or even during his
examination under Section 313 of the Cr.P.C. It was raised at the
end of the trial to wrongly obtain the benefit of Section 84 IPC.
Hence, the Judgment of conviction of the Learned Trial Court
warrants no interference.
6. The rival submissions were heard at length and given
due consideration. All documents including the evidence furnished
and the assailed Judgment have been perused by us.
7. The question for determination before this Court is;
Whether the conviction of the Appellant under Section 302 IPC, by
the Learned Trial Court, stands obviated by non-consideration of
the plea of insanity taken by the Appellant?
(i) In this context, it is essential to peruse the provisions
of Section 84 of the IPC, which is extracted hereinbelow for
convenient reference;
"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."
The provision is self explanatory.
(ii) As a corollary to Section 84 of the IPC, it is essential to
consider Section 105 of the Indian Evidence Act, 1872 (hereinafter,
the ―Evidence Act‖) which reads as follows;
"105. Burden of proving that case of
accused comes within exceptions.--When a
person is accused of any offence, the burden of
proving the existence of circumstances bringing the
case within any of the General Exceptions in the
Pradeep Khatiwara vs. State of Sikkim
Indian Penal Code, (45 of 1860), or within any
special exception or proviso contained in any other
part of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume
the absence of such circumstances."
Illustration (a) reads as follows;
"(a) A, accused of murder, alleges that, by
reason of unsoundness of mind, he did not know the
nature of the act.
The burden of proof is on A."
(iii) The Prosecution case in the first instance is required to
be established beyond a reasonable doubt, thereafter the burden of
proving unsoundness of mind rests with Appellant and not with the
Prosecution. The burden of proof cast on the Appellant is no higher
than that which rests upon a party to civil proceedings. The
Supreme Court in State of Rajasthan vs. Shera Ram alias Vishnu
Dutta , observed that, from the principles stated in Surendra Mishra
vs. State of Jharkhand , it is clear that a person alleged to be
suffering from any mental disorder cannot be exempted from
criminal liability ipso facto. The onus would be on the accused to
prove by expert evidence that he is suffering from such mental
disorder or mental condition, that he could not be expected to be
aware of the consequences of his act. That, 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 take resort to the general exceptions from
criminal liability.
(iv) Indeed, it needs no reiteration here that legal insanity
and medical insanity differ from each other. But it must be
recognised that legal insanity is not an independent proposition and
(2012) 1 SCC 602
(2011) 11 SCC 495
Pradeep Khatiwara vs. State of Sikkim
necessarily flows from medical insanity. The proof of legal insanity
however is when the evidence placed before the Court by the
accused or the Prosecution, raises a reasonable doubt in the mind
of the Court with regard to the mental health status of the accused
at the time of the offence. It must be shown that the accused by
reason of his unsoundness of mind was incapable of knowing the
nature of the act or what he was doing was either wrong or
contrary to law. This is the exception carved out by Section 84 of
the IPC. The onus cast on the accused under Section 105 of the
Evidence Act is, as already stated, to the extent of preponderance
of probability. While differentiating medical insanity from legal
insanity in Prakash Nayi alias Sen vs. State of Goa5, the Supreme
Court referred to Jai Singh P. Modi, A Textbook on Medical
Jurisprudence and Toxicology, 26th Edition, 2018. It was held that, a
person of an unsound mind who is incapable of knowing the
consequences of an act does not know that such an act is right or
wrong. He may not even know that he has committed the act.
When such is the position he cannot be made to suffer punishment.
This act cannot be termed mental rebellion constituting a deviant
behavior leading to crime against the society. He stands as a
victim in need of help and therefore cannot be charged and tried
for an offence. The position is that of a child not knowing either his
action or the consequence of it.
(v) In Bapu alias Gujraj Singh vs. State of Rajasthan6, it was
observed that Section 84 of the IPC embodies the fundamental
principle of criminal law i.e., actus non reum facit nisi mens sit rea
(an act does not constitute guilt unless done with a guilty
(2023) 5 SCC 673
(2007) 8 SCC 66
Pradeep Khatiwara vs. State of Sikkim
intention). Thus, in order to constitute an offence there must be
criminal intent and the act must concur.
(vi) In Ratan Lal vs. The State of Madhya Pradesh7, it was held
that;
"2. It is now well-settled that the crucial point of
time at which un-soundness of mind should be established
is the time when the crime is actually committed and the
burden of proving this lies on the accused. (See State of
M.P. v. Ahmadullah. [(1961) 3 SCR 583 : AIR 1961 SC 998 : (1961) 2 SCJ
197 : 1961 (2) Cri LJ 43] ) In D.G. Thakker v. State of Gujarat [(1964) 7 SCR 361 :
AIR 1964 SC 1563 : (1965) 2 SCJ 531 : 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, 1860, 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‖. It was
further observed:
―The crucial point of time for ascertaining the
state of mind of the accused is the time when the
offence was committed. Whether the accused was in
such a state of mind as to be entitled to the benefit
of Section 84 of the Penal Code, 1860 can only be
established from the circumstances which preceded,
attended and followed the crime.‖."
8. On bedrock of the said principles, we proceed to
examine the evidence on record furnished by the Prosecution and
the Defence.
(i) Following the incident on 01-12-2019, the next
morning, the Appellant was questioned by PW-2 Dil Bahadur
Limboo alias Tarbhotay Limboo about what had transpired in the
cardamom drying shed, the previous day, to which the Appellant
did not respond. According to PW-2, he overheard the Appellant
admitting on interrogation to the Police, that he had committed the
murder of the two people. Under cross-examination PW-2
admitted that he had heard from the Appellant's mother that the
Appellant was under medication but he was unaware of the exact
date when the course of the medication commenced. He also did
not know the reason for the medication. The Appellant on enquiry
(1970) 3 SCC 533
Pradeep Khatiwara vs. State of Sikkim
by the witness had disputed the fact of mental illness but DW-1,
his mother, had told PW-2 that the Appellant suffered from mental
illness. Admittedly, after the incident the Appellant did not try to
escape from the place of occurrence. Pausing her momentarily,
we deem it necessary to observe that individuals react differently
to the same situations, merely because he did not abscond does
not render him insane. In Elavarasan vs. State represented by
Inspector of Police , it was inter alia held that the fact that the
Appellant had not escaped from the place of occurrence, was no
reason by itself sufficient to declare him to be a person of unsound
mind, incapable of understanding the nature of acts committed by
him as experience has shown that different individuals react
differently to same or similar situations. Be that as it may, PWs 1,
2 and 3 reached the same place of incident but could shed no light
on the Prosecution case. PW-4 was a labourer in the nearby
cardamom drying shed of another person, who stated that, after
his arrest on interrogation by the Police, the Appellant confessed to
the murder of the two victims. PW-5 reached the cardamom drying
shed at around 00.07 p.m. and saw the dead body of the female
victim. PW-6 reached the place of occurrence on the next day at
around 12 noon where he saw the dead body of the female victim.
That, on arrest, the Appellant revealed that he had killed the other
labourer Mikmar Lepcha, whose dead body was found in the brook
near the cardamom drying shed. PW-7 had also accompanied his
co-villager to the place of occurrence where they saw the dead
body of the female victim, below the cardamom drying shed of one
Chundu Lepcha and that of Mikmar Lepcha near a brook. PW-8
who conducted the postmortem of both the victims found several
(2011) 7 SCC 110
Pradeep Khatiwara vs. State of Sikkim
incised lacerated and burn injuries on the body of Mikmar Lepcha,
while lacerated injuries were found on the body of Dhan Keshi
Tamang. PW-9, who was posted as Medical Officer, District
Hospital Mangan, deposed that the previous Medical Officer at the
District Hospital, Mangan had examined the Appellant at the
relevant time. His cross-examination would reveal that when the
Appellant was thus examined, his past medical history was not
obtained from him or his guardians. PW-10 is the daughter of the
female victim, who received her dead body and performed her
funeral rites. PWs 11 and 12 are the neighbors of the deceased
Mikmar Lepcha who received his dead body. PW-13 was the
Junior Scientific Officer, Biology Division, Regional Forensic
Scientific Laboratory, Saramsa, Ranipool, Sikkim, who on 14-01-
2020 received 20 requisites forwarded by the Prosecution to him
for forensic tests and identified the blood group of the Appellant
and both victims as ―AB‖. That, the blood stains on an axe with an
iron handle also bore the same blood group. It is relevant to note
at this juncture that no injuries were found on the Appellant, which
thereby concludes that the blood on the axe handle was that of one
of the deceased persons. PW-14, the IO in his evidence before the
Learned Trial Court deposed that, the Appellant confessed to
having committed the murder of his two colleagues, working with
him at the cardamom drying shed, on 01-12-2019. That after
having dinner, the Appellant and the deceased Mikmar Lepcha were
sitting near the fire place while Dhan Keshi Tamang was cleaning
the utensils. As Mikmar Lepcha declined to give the Appellant
some tobacco, the Appellant took a wooden plank and hit Mikmar
Lepcha, who fell on the ground near the fire place. Dhan Keshi
Tamang who questioned his act, was assaulted with an axe on her
Pradeep Khatiwara vs. State of Sikkim
forehead as a result of which she fell to the ground and succumbed
to her injuries.
(ii) The mother of the Appellant sought to be and was
examined as DW-1, by the Appellant. She had no documents to
support her claims that the Appellant was mentally ill as also DW-
3, his sister, but they were both aware that the Appellant had been
a patient of mental illness. DW-3 was categorical in her evidence
that during the year 2011-12 she took the Appellant who was
depressed to Dr. I. L. Sharma. Subsequently, she took him to DW-
2, the Psychiatrist. On November, 2018, he was last treated by the
Psychiatrist. DW-2 was the Psychiatrist at the District Hospital,
Singtam, and was re-examined by the Learned Trial Court in terms
of the Order of this Court dated 02-08-2023. DW-2 in his evidence
identified the Appellant. He stated that from 2015-2019 he was
posted as Head of the Department, Psychiatry, District Hospital,
Singtam. He had diagnosed the Appellant with Psychosis on 27-
11-2017 and the Appellant was under his treatment at the District
Hospital, Singtam. The Appellant came to him for treatment till
18-12-2017. He identified Exhibit D2/DW-2 as the certificate
issued by him dated 08-06-2023, wherein he had mentioned that
the Appellant came to him for treatment on 27-11-2017 and 18-
12-2017. He identified Exhibit D2/DW-2 which bore his signature
Exhibit D2(a)/DW-2. According to him along with Exhibit D2/DW-2
he also provided certified copies of the medical report of the
Appellant, maintained at the District Hospital, Singtam pertaining
to the two dates (supra) when the Appellant had come to him for
treatment. Exhibit D3/DW-2 was identified as the certified copy of
the page pertaining to ―New Patient's Register‖ wherein on 27-11-
2017 the name of the Appellant was entered at Serial No.52.
Pradeep Khatiwara vs. State of Sikkim
Exhibit D4/DW-2 was identified as the certified copy of the relevant
page of the follow up register. He identified his signature also on
the said documents which evidence was un-decimated under cross-
examination. DW-4 who treated the Appellant is the Consultant
Psychiatrist, at STNM Hospital, Gangtok. According to him the
Appellant had been his patient since May, 2020 and his name was
entered in Exhibit D1/DW-4, the prisoners treatment book. On 02-
02-2022 at around 1400 hours the Appellant attempted to commit
suicide by hanging but his attempt was thwarted due to the
intervention by the prison inmates. Thereafter, he was admitted to
the Psychiatric ward of STNM Hospital on 02-02-2022 and
discharged on 11-02-2022. According to DW-4;
" .....................................................
5. It is true that in the absence of regular treatment
the symptoms of Psychosis can trigger anytime in a
person suffering from Psychosis. A patient of
Psychosis requires regular treatment for a long
duration of time.
6. It is true that a patient of Psychosis often have a
lack of insight and during the acute phase of illness,
they are unaware of the consequences of their
action.
7. During the phase of his illness, later on he started to
develop depressive symptoms and that could be the
cause of him trying to commit suicide in jail."
The Learned Trial Court put some queries to the witness viz.;
"Court Question
4. What is Psychosis?
Ans: It is an acutely severe mental disorder when the
patient loses contact with reality along with absolute
lack of empathy and absence of insight.
5. It is true that I received information from State
Central Prison, Rongyek stating that the convict had
tried to commit suicide. It is also true that I was
not present in the jail when the accused allegedly
tried to take his life.
6. ....................................
7. It is true that I cannot say if the convict was
suffering from Psychosis prior to the incident, since,
I did not examine him prior to the incident/date of
offence.
8. It is not a fact that the convict is not a patient of
Psychosis.
9. ...................................."
Pradeep Khatiwara vs. State of Sikkim
9. We have considered and analyzed the evidence on
record, we have also seen the medical reports furnished before this
Court and the evidence recorded post the petition filed under
Section 391 of the Cr.P.C. The Learned Trial Court based the
conviction of the Appellant by discussing three legal principles i.e.,
the last seen theory, circumstantial evidence and the extra judicial
confession of the Appellant before the PW-2. The Learned Trial
Court framed two points for consideration and determination as
follows;
"POINT NO.(i)
(i) Whether the accused committed the murder of the
deceased Mikmar Lepcha and Dhan Keshi Tamang,
labourers of Dhan Bahadur Limboo @ Tarbotay Limboo of
Chadey, North Sikkim in the evening of 01.12.2019 at the
drying shed of cardamom at Sumindang, Upper Dzongu,
North Sikkim.
(ii) Whether accused was insane at the time of the
commission of offence?"
(i) The Learned Trial Court while discussing issue no.1
relied on Sharad Birdhichand Sarda vs. State of Maharashtra9, where
the five principles of circumstantial evidence which have now come
up known as panchsheel principles were discussed. The Learned
Trial Court relied on the evidence of PW-2 who had employed the
Appellant and the two deceased persons, PWs 1 and 4 the
labourers of another cardamom field owner, as well as of DW's 1
and 3, who had confirmed that the Appellant was working in the
cardamom field of PW-2. That, their evidence established that the
Appellant was last seen with the deceased persons. That, the
expert opinion of PW-13, who found the blood on the axe, sickle
and jeans pants of the Appellant with blood group ―AB‖ created a
link of circumstantial evidence against the Appellant in the
commission of the offence. As regards extra judicial confession the
AIR 1984 SC 1622
Pradeep Khatiwara vs. State of Sikkim
Learned Trial Court concluded that the Appellant had admitted to
PW-2 that he had murdered the two victims, using the axe with an
iron handle only corroborated by DW-1. In addition to the above,
the Learned Trial Court also took into consideration the response of
the Appellant in his Section 313 Cr.P.C. statement in question
nos.25, 30 and 60. The Court while discussing the second point
formulated, proceeded to discuss Section 84 of the IPC and the
decision of the Supreme Court in T. N. Lakshmaiah vs. State of
Karnataka10. While considering the doctrine of burden of proof in
the context of the plea of insanity, in Paragraph 22 of the
impugned Judgment it was recorded inter alia as follows;
"22. Arguments raised by defence is to be replied.
In the present case, accused no where taken plea of
insanity during investigation, inquiry and trial of this case
or even during his examination under section 313 Cr.P.C.
At the fag end of the trial, accused produced and examined
DW-1 to DW-3 to prove legal insanity without supporting
documentary evidence. DW1, DW-2 & DW-3 are unable to
say whether accused was insane at the time of commission
of offence or not. There are no other evidence to establish
that accused was suffered from legal insanity at the time of
commission of offence. Accordingly, accused is unable to
establish the existence of circumstances as required by
section 105 of the Indian Evidence Act, 1872 so as to
entitle the benefit of section 84 of the IPC. Accordingly,
point no(ii) is also decided against the accused."
Consequently, the trial concluded in the conviction.
(ii) The evidence on record perused by us establishes that
the Appellant attacked and caused the death of Mikmar Lepcha and
Dhan Keshi Tamang.
(iii) Having carefully considered the findings of the Learned
Trial Court, we are of the considered view that the Learned Trial
Court erred in ignoring the evidence furnished by the Appellant
regarding his medical condition.
(iv) Concededly the Learned Trial Court did not have the
benefit of the documentary evidence furnished before us pursuant
AIR 2001 SC 3828
Pradeep Khatiwara vs. State of Sikkim
to the Order dated 02-08-2023, on a petition filed by the Appellant
under Section 391 of the Cr.P.C. However, the Learned Trial Court
did have the aid of the evidence of DW-1, DW-2 and DW-3, with
DW-2 having deposed about the mental health status of the
Appellant and that he suffered from Psychosis.
10. It emerges from the evidence and documents placed
before us that as far back as in 2011-12 the Appellant was
suffering from mental illness. He was then taken for treatment as
per the evidence of DW-3 to a Psychiatrist the same year and in
the year 2017 to DW-2. It is the specific statement of DW-2 and
DW-4 that the disease can relapse if the patient is not continuously
treated by the doctor at regular intervals of time. Post the
incident, the medical history and the mental status of the Appellant
came to light. Exhibit D1/DW-4, dated 26-05-2020 reveals that
the Appellant was a ―follow up case of Psychosis‖. The drugs
prescribed to him were; 1. Tab. Olana 10 mg - ½ - X 1 (2 weeks)
2. Tab. Clopa MD 0.5 mg - X - X - 1 (2 weeks) from 12-05-2020.
On 10-05-2022, the medical document reveals as follows;
"Date / Time FOLLOW UP NOTE
10/05/2022 Follow up case Psychosis with comorbid
depression.
Better
No fresh complaints
Sleep - Normal No delusion.
Appetite - Normal No Hallucinations
Adv.
Review within 1
1. Tab. Oleanz RT 10 mg - BD x 1 month.
month or SOS
2. Cap. Prodep 40 mg - OD x 1 month.
Sd/-"
(i) It is thus clear that the medical history of the Appellant
when tested on the anvil of the principles as put forth in Prakash
Nayi alias Sen (supra), indicates that the Appellant was a patient of
mental illness thereby raising doubts about his mental health at the
Pradeep Khatiwara vs. State of Sikkim
time of the offence. The findings of the Learned Trial Court that
the plea of insanity was an afterthought is perverse and against the
weight of evidence furnished by the Appellant.
11. We are of the considered opinion that the Appellant
has been able to create sufficient doubt in our minds that he is
entitled to the benefit of the exception under Section 84 of the IPC
on account of his medical history, medical documents and his
medical condition at the time of the offence. He was suffering from
mental illness, preceding the incident and post the incident. His
behaviour immediately after the incident is evidently abnormal as
revealed by the evidence of PW-2. The Appellant is thereby
entitled to the benefit of doubt.
12. Consequently, the Appellant is acquitted of the offence
under Section 300 of the IPC punishable under Section 302 of the
IPC.
13. The Appellant be handed over to the Head of
Department, Psychiatry, in the STNM Hospital by the Jail
Authorities. He shall be taken into psychiatric care and hospitalized
till such time the Psychiatrist deems it necessary. The relevant
provisions of Section 335 of the Cr.P.C. shall be duly complied with
by the Hospital Authorities.
14. Appeal allowed.
15. Fine, if any, deposited by the Appellant in terms of the
impugned Order on sentence, be reimbursed to him.
16. Copy of this Judgment be forwarded to the Learned
Trial Court forthwith along with its records as also to the Jail
Authorities and to the Sikkim State Legal Services Authority,
Gangtok, for monitoring the condition of the Appellant and
Pradeep Khatiwara vs. State of Sikkim
rendering assistance where required, while abiding by applicable
rules.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
24-04-2024 24-04-2024
Approved for reporting : Yes
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