B. Sudhakara vs The State

Mohan M. Shantana Goudar, J.—1. The judgment and order of conviction dated 23.4.2012 passed by the II Additional District and Sessions Judge, Dakshina Kannada, Mangalore in S.C. No. 68/2006 is called in question in this appeal by the convicted accused.

By the impugned order, the Trial Court has convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life; fine is also imposed. However, by the very judgment, the Trial court has acquitted the accused of the offence punishable under Section 27 of the Indian Arms Act.

Case of the prosecution in brief is that, the accused was working as an Armed Guard in Karnataka Bank, Kodialbail Branch, Mangalore City since 1997; he was an Ex-service man and after retirement from military, he was appointed as Armed Guard in Karnataka Bank; the deceased namely, U. Ramakrishna was working as a Special Assistant in the very Bank and he was the President of Karnataka Bank Employees'' Union; the accused was not discharging his duties in the said Bank as Armed Guard properly and therefore, the Management was thinking of transferring the accused to some other Branch more particularly to the Central Office; the accused was under the mistaken notion that the deceased would be responsible for his transfer to some other branch and therefore, the accused had grouse against the deceased; in that regard the accused prepared himself to eliminate the deceased; at about 10.00 a.m. on 2.4.2001, the deceased came to the Bank; likewise, other employees including the complainant (PW.1) also came to the Bank; the complainant was sitting in the Loan Section Room at about 11.20 a.m. and he was counting the currency notes and at that point of time, the accused was standing by the side of the main gate; he was armed with double barrel gun provided by the Bank for discharging his duties as Armed Guard; the deceased questioned the accused as to whether he had got anything to say, but the accused all of a sudden fired at the deceased with the double barrel gun, consequent upon which, the deceased fell down on the spot inside the Bank with a gun shot injury; though the inmates of the Bank including PW.1 and the Manager tried to nab the accused while he was in the Bank, the accused fled away on his scooter along with the gun. The deceased was immediately shifted to hospital at Mangalore in an auto rickshaw wherein he was treated by the Doctors. Ex. P10 - wound certificate of the deceased is issued by the Doctor. Unfortunately, the deceased succumbed to the injuries at 6.15 p.m. on the very day while he was undergoing treatment.

Complaint came to be lodged by PW.1 as per Ex. P1 at about 11.30 a.m., which came to be registered in Crime No. 59/2001 for the offences punishable under Section 307 of IPC and Section 27 of the Indian Arms Act. Ex. P16 - FIR was transmitted to the learned Jurisdictional Magistrate. After the death of the deceased, Section 302 of IPC is added. In the meanwhile at about 11.45 a.m., PW.15 - Sub-Inspector of Police received information from C.W.43 - PSI of Urva Police Station that the accused had surrendered before him in Urva Police Station; consequently CW.43 - PSI, Urva Police Station produced the accused before PW.15 - Sub-Inspector of Police, Mangalore North Police Station (jurisdictional Police) and inturn, PW.15 arrested the accused and seized M.O. No. 1 - double barrel gun from him; the police after completion of investigation, laid the chargesheet. PW.16 - Investigating Officer has completed the investigation and laid the chargesheet.

In order to prove its case, the prosecution in all has examined 17 witnesses and got marked 19 Exhibits and 11 Material Objects. On behalf of the defence, 10 witnesses were examined and 31 Exhibits were got marked. The Trial Court, as aforementioned on evaluation of the material on record convicted the accused for the offence punishable under Section 302 of IPC and acquitted the accused of the offence punishable under Section 27 of the Indian Arms Act.

Sri Venkatareddy, learned Advocate appearing on behalf of the appellant taking us through the material on record submits that, the Trial Court has not considered the evidence of Dws. 1 to 10 in proper perspective; the voluminous records produced by the defence would clearly reveal that the accused was suffering from paranoid schizophrenia since a long time prior to the incident in question; even after the incident also, the accused was suffering from the very disease and he was subjected to medical examination by reputed Doctors both at Mangalore and Bangalore; the incident has taken place without any motive; the motive as alleged by the prosecution is not proved by the prosecution beyond reasonable doubt; since the accused was suffering from paranoid schizophrenia as on the date of the incident, he is entitled to get the benefit of Section 84 of IPC. According to him, the evidence of the Doctors viz., DWs. 4 to 10 is consistent, cogent and reliable; absolutely no allegations are found against any of the Doctors. All the Doctors are reputed Doctors of the State in the field of Psychology and Neuro Science; the Doctors are not related to the accused; since the Doctors are independent Public servants, there is no reason as to why their versions should be disbelieved. He further draws the attention of this Court that not even a suggestion was made by the prosecution while Doctors were in the witness box that they are in any way interested with the accused and that they have not given any false evidence both documentary as well as oral. On these among the other grounds, he prays for setting aside the judgment of the Court below.

Per contra Sri Vijay Kumar Majage, learned Additional Special Public Prosecutor submits that the defence virtually admitted the case of the prosecution on merits of the matter; it is not in dispute that the accused was having grouse against the deceased, inasmuch as the evidence on record clearly reveals that the accused was of the opinion that the deceased was making efforts to get the transfer of the accused from one branch to another; the very fact that the accused immediately after the incident fled away from the scene on the scooter with the gun and the very fact that the accused surrendered before another Police Station within about a short period would clearly reveal that the accused was sane and he was not suffering from paranoid schizophrenia as on the date of the incident as well as at the time of incident. If really the accused was suffering from paranoid schizophrenia, he would not have come to the work place at all and he would have taken leave on that day; the very fact that the accused had come to the office would clearly reveal that he has come to the office with an intention to do away with the life of the deceased. He further submits that the accused has threatened the witnesses including PW.1 and the Manager of the Bank showing the gun immediately after the incident before fleeing from the scene of offence. All these factors, according to the learned Additional Special Public Prosecutor, conclusively show that the accused was sane and he committed the crime knowing full well about the consequences. He further submits that the evidence of DWs. 1 to 3 reveals that the accused was introvert and he tried to commit suicide at an earlier point of time; their evidence does not disclose that the accused was in a habit of harming others unnecessarily. On these among the other grounds, he submits that the Trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC.

PWs. 1 to 7 are the eye witnesses to the incident in question. All these persons are the Bank employees of Karnataka Bank working in Kodailbail Branch, Mangalore. Among them, PW.1 is the complainant and the complaint is marked at Ex. P1. He is also the witness for scene of offence mahazar Ex. P2. He has identified M.O. Nos. 1 to 4. PWs. 3, 5, 6 and 7 have also deposed about the motive for commission of offence. We find that the ocular testimony of PWs. 1 to 7 with regard to the incident in question is consistent, cogent and reliable.

PWs.8, 9 and 10 are the Bank employees. However, they are not the eye witnesses to the incident. They have deposed that they have heard gun shot sound. Among them, PW.8 has also deposed about the motive for commission of offence. In the cross-examination, PWs.8 and 10 have admitted that the accused did not have any motive as against the deceased for commission of offence.

PW.11 is a Retired Senior Manager working in the Bank. He has also deposed about hearing of gun shot sound.

PW.12 is another Senior Manager of the Bank. He has deposed that the Armed Guard services to the Bank came into effect from 1999; that the accused was appointed as Armed Guard of Karnataka Bank, Kodialbail Branch, Mangalore in the year 1999; that the gun -M.O.1 belongs to the Bank and the same was provided to the accused for discharging his duties as Armed Guard. He has also deposed about the motive on the part of the accused for commission of offence. However, in the cross-examination, he has admitted that he has not stated before the Police about the motive while his statement was recorded under Section 161 of Cr.P.C. He has also admitted that no quarrel has taken place between the accused and the deceased during relevant point of time.

PW.13 is the Assistant General Manager of the Bank. He has also deposed about the employment of Armed Guard for security and about the gun licence standing in the name of the Assistant General Manager. He has further deposed that on 2.4.2001 at 9.50 a.m. i.e. on the date of incident, the accused had signed the register and had taken the possession of the gun with cartridges. Through him, Ex. P4 - Gun register extract maintained by the Bank relating to handing over of the gun, Ex. P5 - Attendance Register for the month of April, 2001, Ex. P6 - Extract of Gun licence, Ex. P7 - extract of Gun retainer house in the name of the accused, Ex. P9 - Attendance Register from 1.1.2001 to 30.7.2001 were marked. PW.13 has further deposed that the accused was frequently on leave on various dates from 8.1.2001 to 1.4.2001.

PW.14 is the Retired Senior Manager working in the Head Office of Karnataka Bank, Kodialbail Branch. He is the witness for seizure mahazar Ex. P15 under which M.O. Nos. 1, 5 to 8 were seized.

PW.15 is the Sub-Inspector of Police of North Police Station, Mangalore. He has deposed about receiving information from Police Control Room at about 11.20 a.m. on 2.4.2001 and he went to Karnataka Bank, Kodialbail Branch and recorded the statement of PW.1 as per Ex. P1, based on which crime was registered. He conducted part of the investigation. He has admitted in his cross-examination that an application/representation was filed by the wife of the accused before the Superintendent of Police on 2.4.2001 (on the date of the incident itself) as per Ex. D1.

PW.16 is the Inspector of Police of North Police Station, Mangalore. He completed the investigation and laid the charge sheet.

PW.17 is the Police Sub-Inspector of Urva Police Station, before whom the accused surrendered at about 11.45 a.m. on 2.4.2001 with gun and the scooter. He is also the witness for seizure panchanama Ex. P15 under which M.O. No. 1 - gun is seized.

On behalf of the defence, as aforementioned, ten witnesses were got marked.

DW.1 is the wife of the accused. DWs. 2 and 3 are the elder brothers of the accused. All of them have deposed in detail about the ailment of the accused i.e. about paranoid schizophrenia; DW.1 in addition has deposed about filing of Ex. D1 before the Superintendent of Police on 2.4.2001; through her, Exs.D2 to D17 were marked;

These witnesses have deposed that the accused was suffering seriously from mental disorder on the date of the incident.

DW.4 is Dr. Shivaram Karikal. He is a Psychiatrist, who treated the accused on 21.11.2000, 8.12.2000, 9.3.2001, 13.3.2001 and 15.3.2001. He has furnished the detailed report as per Ex. D20 about treatment of the accused. He has deposed that on 2.4.2001, the accused was severely suffering from primary paranoid psychosis and had lost mental balance. Through him, Exs.D12, 21 and 22 are marked.

DW.5 is Dr. Arun Kumar Rao. He is also a Psychiatrist, who has also treated the accused several times. He has produced Ex. D23 - detailed report of the treatment given by the Doctors - DWs. 5, 7 and 9.

DW.6 is Dr. K.S. Shetty. He is a Psychiatrist, who has also treated the accused on various occasions. He has issued Ex. D8 - Medical prescription dated 7.1.2001. He has also issued Ex. D11 - certificate.

DW.7 is Dr. C.R. Chandrashekar. He is a Psychiatrist attached to Nimhans Hospital, Mangalore. On examination, the said Doctor has also opined that the accused was suffering from paranoid schizophrenia. He has issued Exs.D.25, D26, D27, D28 and D29.

DW.8 is Dr. N. Shankar. He is a Neurologist, who treated the accused as an outpatient on 4.9.2000 and issued medical prescription - Ex. D13. He has treated the accused again on 15.9.2000 and issued medical prescription - Ex. D14.

DW.9 is Dr. K.S. Madhava Rao. He is also a Psychiatrist attached to Wenlock Hospital (District Hospital). He has treated the accused on 7.4.2001, 11.4.2001, 16.4.2001 and 20.4.2001. He has submitted the report as per Ex. D30. He has deposed about Ex. D23 i.e. the out patient book of the accused showing the treatment given to the accused on 14.9.2001, 24.9.2001, 10.10.2001, 23.10.2001, 9.11.2001 and 20.4.2001.

DW.10 is Dr. M. Nagendra Murthy. He is a Senior Surgeon and Resident Medical Officer working at Wenlock Hospital, Mangalore during relevant point of time. After examination of the patient/accused, he has given his report on 20.4.2001. He has deposed about the documents at Exs.D23 and D30.

On careful perusal of the evidence of PWs. 1 to 7, we are clear in our mind that the accused fired a gun shot against the deceased, consequent upon which the deceased sustained gun shot injuries and subsequently, in the evening of 2.4.2001, the deceased died during the course of treatment.

As mentioned supra, we find that the evidence of PWs. 1 to 7 is consistent, cogent and reliable. All of them are the Bank employees, who were sitting in and around the place of incident in the Bank. The incident has taken place within the Bank premises wherein not only the employees, but also the customers of the Bank were present. It is also not in dispute that the double barrel gun was provided to the accused for discharging his duties as Armed Guard in Karnataka Bank, Kodialbail Branch. Accordingly, at 9.50 a.m. on 2.4.2001 (the date of the incident), the accused after signing the attendance register took charge of the double barrel gun (M.O.1) and had possessed the said gun till the same was seized.

PW.13, the Assistant General Manager has deposed that at about 9.50 a.m. on 2.4.2001 (the date of the incident), the accused had signed the register and taken the gun with cartridge. It is also not in dispute that the deceased came to the Bank in and around 10 a.m. and was talking to his colleagues within the Bank premises. Suddenly, the accused fired a gun shot towards the deceased, consequent upon which the deceased died. In view of the consistent evidence of PWs. 1 to 7, in our considered opinion, the Trial Court is justified in concluding that it was the accused and the accused alone, who was responsible for the death of the deceased. We may hasten to add here itself that, even the defence counsel does not dispute the said fact. He fairly submits that the Trial Court is justified in concluding that the accused was responsible for causing the death of the deceased by firing with the help of M.O.1 - Gun.

Though PWs. 3, 5, 6, 7, 8 and 12 have deposed about the motive for commission of offence on the part of the accused, we find that the evidence relating to motive is half-hearted and shaky;

As mentioned supra, it is the case of the prosecution that the accused was feeling that the deceased was trying to get him transferred from Kodialbail Branch to Central Office. In this regard, the evidence of PW.3 is very much relevant. In the examination-in-chief, PW.3 has deposed that the accused was under the impression that the deceased is trying to get the accused transferred to Central Office. In the cross-examination, it is admitted by the very PW.3 that Karnataka Bank of Kodialbail Branch is situated in the cellar of the building; the said building has got four floors; in the very building itself, the Central Office is located. It is also admitted by PW.3 that there is one more Armed Guard attached to Central Office; the distance between the Central Office and the Kodialbail branch is just about 15 feet; These facts clearly reveal that the Central Office and Kodialbail Branch are situated in the very building; the post held by the accused is Security Guard; even assuming that he would be transferred to Central Office, he would have only worked as security guard and not in any other post. Therefore, there would not be any much difference. Consequently, the motive as suggested by the prosecution cannot be believed. Moreover, PW.3 who has deposed about the motive, has clearly admitted in the cross-examination that the accused was a good person and that no incident had taken place between the accused and the deceased prior to the incident in question; the accused fired the gun shot suddenly without any premeditation. Though in the examination-in-chief, PW.3 had deposed that there was altercation, in the cross-examination he has deposed that there was no altercation; that the accused suddenly fired gun shot against the deceased. So also PW.8 though has deposed in his examination-in-chief about the motive as put-forth by the prosecution, in the cross-examination it is admitted by him that the accused was not being transferred; the reason for commission of the offence by the accused is not known to him. He has not told before the Police that there was a difference of opinion between the accused and the deceased. Likewise, PW.10 another witness has also clearly admitted that there was no rivalry between the accused and the deceased earlier to the incident and that he does not know about the personal matters of the accused. Such clear admissions of the prosecution witnesses would amply show the circumstance of motive as put-forth by the prosecution is not proved by it, beyond reasonable doubt. It is clearly admitted by certain of the witnesses as mentioned supra that there was no rivalry between the accused and the deceased at any point of time; there is no material to show that the accused was being transferred to some other place; no quarrel whatsoever ensued between the accused and the deceased just prior to the incident in question. Therefore, we conclude that the aspect of motive is not proved by the prosecution.

Generally, in view of the reliable ocular testimony of the eye witnesses PWs. 1 to 7, no importance can be attached to the circumstance of motive. But in the matter on hand, the evidence relating to motive also plays importance particularly when the accused is pleading for the benefit under Section 84 of IPC.

It is needless to observe that while considering the case under Section 84 of IPC, the conduct of the accused would also be very much relevant. In view of the same, we have discussed at length about the circumstance of motive as put-forth by the prosecution and we have concluded about the aspect of motive as put-forth by the prosecution is not proved by it, beyond reasonable doubt.

It is the defence of the accused that he was suffering from paranoid schizophrenia, which is a serious mental disorder; he was not in a position to understand about the actual facts during relevant point of time; he was suffering from hallucination and fear syndrome etc. If such defence is taken by the accused, it is for the accused to prove the said defence atleast based on preponderance of probabilities. In this regard, it is relevant to note the dictum laid down by the Apex Court in the case of SUDHAKARAN v. STATE OF KERALA reported in , (2010) 10 SCC 582, wherein it is concluded as under:

"34. Thereafter, upon further consideration, this Court defined the doctrine of burden of proof in the context of the plea of insanity in the following propositions: (Dahyabhai Chhaganbhai Thakkar case, AIR p. 1568, para 7)

"(1) The prosecution must prove beyond reasonable doubt that the [appellant] 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 (appellant) was not insane, when he committed the crime, in the sense laid down by Section 84 of the Penal Code: the [appellant] may rebut it by placing before the court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

(3) Even if the [appellant] 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 [appellant] 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 [appellant] and in that case the Court would be entitled to acquit the [appellant] on the ground that the general burden of proof resting on the prosecution was not discharged."

It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 is the time when the offence is committed. We may notice here the observations made by this Court in Ratan Lal v. State of M.P. In para 2 of the aforesaid judgment, it is held as follows: (SCC p.533)

"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 [appellant]."

From the aforementioned dictum, it is amply clear that the primary burden is on the prosecution to prove beyond reasonable doubt that the accused has committed the offence with requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. There is 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 and 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 for 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. Thus, it is clear that though the burden lies on the accused to prove that he was insane during the relevant point of time, such burden of proof upon him is no higher than that rests upon a party to civil proceedings, which means the accused may have to prove his defence based on the preponderance of probability. He need not prove his defence beyond reasonable doubt, inasmuch as the burden of proof always rests on the prosecution.

The prosecution has to prove mens rea on the part of the accused to commit the crime. It is also well established 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 the same lies on the accused.

Keeping the aforementioned settled position of law in mind, we have carefully perused the evidence of the defence more particularly, the evidence of the Doctors - DWs. 4 to 10, who have examined and treated the accused just prior to the incident and immediately after the incident. DWs. 1 to 3 being the family members of the accused have deposed about the mental status of the accused as on the date of the incident.

The incident has taken place at about 11.20 a.m. to 11.30 a.m. on 2.4.2001. An application/representation came to be filed by the wife of the accused before the Superintendent of Police, Mangalore as per Ex. D1 on the evening of the very day i.e. on 2.4.2001. The said application/representation-Ex. D1 reveals that the accused was suffering from insanity since a long time. DW.1/wife of the accused has deposed that the accused was suffering from paranoid schizophrenia since two months prior to the incident; the accused had fear syndrome; he used to fear for talking and mingling with other persons; he always used presume that all employees in the Bank are working against him and are mentally torturing him, that the authorities of the Bank are always following him etc; whenever any tiffin/breakfast is offered to him by the bank employees, he used to feel that poison is being administered to him etc; the accused was also feeling that the authorities of the bank would murder him by using computers. The evidence of DWs. 2 and 3, who are the elder brothers of the accused is on the same lines as the evidence of DW.1 (wife of the accused). All these three witnesses have deposed about the mental illness of the accused as well as the treatment provided to him by the Doctors.

The versions of DWs. 1 to 3 are fully supported by the versions of DWs. 4 to 10 - Doctors, who treated the accused from time to time.

DW.4 - Dr. Shivaram Karikal has deposed that he has taken MRCP degree in London. He has completed his Diploma in Psychological Medicine at Ireland; he has also taken the degree in M.S. from Vienna; he has presented number of papers/articles in the medical magazines. He has worked in one of the famous hospital at England for four years and he has given treatment for about thousands of patients, who were suffering from insanity. He has also given his evidence in Crown Courts and Magistrate Courts at England. He was working as Psychiatrist since 1987 at Mangalore and he has given treatment for more than two lakhs of patients at Mangalore, who are suffering from insanity. He has further deposed that the accused was being treated by him since 21.11.2000. At that point of time, the accused was suffering from sleeplessness, loss of concentration, anger for no reason, changing moods and depression; he was unnecessarily crying; accused was feeling that all the people are against him. It is further deposed by the Doctor that the accused was suffering from depressed paranoid delusions, a motivation, palpitations, short disorder etc. The said Doctor has diagnosed the disease of the accused was paranoid delusions and the accused was treated for the said disease.

The medical record of the accused maintained by the Doctor - D.W.4 is at Ex. D20. D.W.4 has deposed before the Trial Court that the accused was suffering from paranoid delusions, which is a mental illness. He has opined that the persons, who are suffering from paranoid psychosis would suffer from suicidal tendency or with the syndrome of doing harm to others. It is clear from the evidence of DW.4 that the accused was suffering from primary paranoid psychosis. After the incident in question, the said Doctor - DW.4 has stopped treating the accused since he was of the opinion that the accused should be given treatment by the Government Doctors. In paragraph 22 of his deposition, DW.4 has deposed that the previous day of the incident in question was Sunday and the Doctor, who was treating the accused was in his native place, which was 90 kilometers away from Mangalore city. At that point of time, the wife of the accused/DW.1 had called and requested DW.4 to give treatment to the accused forthwith because the accused has started behaving with heavy intolerance; that the illness had attained serious proportions; the accused has become restless etc; the Doctor had advised the wife of the accused (DW.1) that the hands and legs of the accused should be tied tightly and he should be admitted to the hospital immediately; on the next day itself i.e. on 2.4.2001 (Monday), the incident has taken place. After two days of the incident i.e. on 5.4.2001, once again the wife of the accused had come and requested DW.4 for medical help to the accused. However, the Doctor - DW.4 advised DW.1 to admit the accused to Wenlock hospital (District Government hospital).

The evidence of DW.4 is fully supported by the evidence of DW.6 - Dr.K.S. Shetty, who is a Psychiatrist working at Father Mullers'' Hospital, Mangalore. He was aged about 77 years at the time of his deposition. He has got long standing experience of 43 years as Psychiatrist. He has given treatment to lakhs of patients having psychological problems. The medical record of the accused issued by the said Doctor is at Ex. D8.

DW.6 has deposed that he saw the accused for the first time on 7.1.2001 and examined him. He has deposed that the accused was suffering from paranoid psychosis schizophrenia. On 20.2.2001 also, the accused was treated by the very Doctor. He has detailed as to how a patient suffering from paranoid schizophrenia or paranoid psychosis behaves. He has deposed that paranoid schizophrenia and paranoid psychosis are one and the same; the person, who is suffering from paranoid schizophrenia or paranoid psychosis is always suspicious of others; he never believes anybody; he would see the entire society with suspicion etc.

DW.8 - Dr. N. Shankar is a Neurologist working at Kasturba Medical College Hospital, Mangalore. He has examined the accused on 4.9.2000 and 15.9.2000 and has issued medical prescriptions as per Exs.D13 and D14. On his examination, he found that the accused was suffering from paranoid schizophrenia and he has given appropriate medical advice. The accused was subjected to EEG and brain mapping test. It was found by the said doctor that the accused was not suffering from epilepsy but was suffering from paranoid schizophrenia.

From the aforementioned evidence of the doctors, it is clear that the accused was suffering from primary paranoid schizophrenia just prior to the incident. Even one day prior to the incident also, the accused was suffering from serious mental illness as deposed by DW.4.

As mentioned supra the incident has taken place on 02.04.2001. Immediately, after the incident, the Investigating Officer having found that the accused was suffering from mental illness/insanity he referred the accused to psychiatrist attached to Wenlock hospital, Mangalore. The accused was treated by DW.9 Dr. K.S. Madhava Rao on 07.04.2001, 11.04.2001, 16.04.2001 and 20.04.2001. PW.9 has deposed that he has completed his diploma in psychology from Nimhans. He is a fellow of Indian Psychiatric Society and American Psychiatric Society. He has given treatment to thousands of patients who were suffering from insanity and has written essays on the subject of psychology. The prison authorities have referred the accused to PW.9 for evaluation of mental condition and for treatment. Accordingly, accused was examined and was treated by the said doctor on the aforesaid dates and he found that he was suffering from paranoid psychosis suspicion syndrome etc; he was not able to stand straight and at one place; the accused did not have capacity to control his legs; accused was depressed; number of defects were found in the thinking capacity of the accused; accused was always feeling that public at large are suspecting him and he is being controlled by others etc. However, the accused was feeling that his mental disorder is under control; accused was feeling that somebody was making theft of his ideas etc. The said doctor has also opined that the accused was suffering from paranoid paranoid schizophrenia and had advised the prison authorities that the accused should be treated by higher hospital.

Likewise, DW.10 - Dr. Nagendra Murthy who was working as District Surgeon and Resident Medical Officer has examined the accused from 07.04.2001 onwards. He sent the accused to Dr. Madhava Rao, senior specialist for higher treatment and the said doctor has submitted the report to the concerned Court on 20.04.2001. PWs.9 and 10 recommended for treatment to the accused by higher center.

The accused was taken to Dr.Arun Kumar Rao/PW.5, who was a senior psychiatrist and specialist in Wenlock hospital. He has also opined that the accused should be taken to higher medical center for treatment. Accordingly, the accused was taken to Nimhans, Bangalore, for higher treatment whereby, he was treated by PW.7 C.R. Chandrashekar. The said Dr. C.R. Chandrashekar is a professor working in Nimhans Hospital since 34 years and he has given treatment to lakhs of people who were suffering from insanity. He has presented number of books regarding mental diseases and has written 8 test books on the said subject. He has examined and treated the accused from 05.05.2001. The doctor on examination of the accused has issued certificate as per Ex. D.25 to the effect that the accused was suffering from paranoid schizophrenia which is serious type of insanity. His version is almost similar to the version of other doctors. He has opined that the accused was always suspecting that some body is following him and controlling him; that if the accused expresses something then the same would be copied by the whole world etc. The said doctor opined that the accused was suffering from delusion and he used to suspect everybody. In the cross-examination, he has further deposed that both paranoid schizophrenia and paranoid psychosis is almost same with a thin and technical differences between them. Both are mental disorders which come within the definition of legal insanity and both of them are serious in nature. He found that the deceased was suffering from said serious illness since May 2000.

The evidence DWs. 4 to 10/doctors is consistent and cogent. Though they were cross-examined by the public prosecutor at length, nothing worth is elicited to discard the evidence of these doctors. There is nothing on record to disbelieve the version of these doctors. All these doctors are experts in the field working in different places and different hospitals. They did not have any grouse either against the prosecution or against the accused; they are not interested witnesses; they are not related to anybody. Not even a suggestion is made to any of the doctors to suspect their role in issuing the certificates etc. The voluminous evidence let in by the defence more particularly, the evidence of DWs. 4 to 10 would clearly reveal that the accused was suffering from serious mental disorder, namely paranoid schizophrenia/paranoid psychosis since May 2000. Even on the previous day of the incident also the accused was suffering from very illness and he has created problems in the house as is clear from the evidence of doctor/DW.4.

It is further relevant to mention here itself that family members of the accused had sought for custody of the accused when the matter is pending before the committal Court in C.C. No. 12483/2001 on the ground that the accused needs to be treated by the private doctor. Such application came to be rejected by the committal Magistrate on 19.07.2001. As against the said order, the wife and brothers of the accused filed criminal revision petition No. 252/2001 before the II Additional Sessions Court, Mangalore, which came to be allowed on 06.09.2001. While allowing the criminal revision petition, the learned Sessions Judge was convinced that regular treatment of the accused/Sudhakara is necessary by the doctor at Nimhans Hospital, Bangalore, till the accused is completely cured from mental illness. The public prosecutor appearing before the Sessions Court did not dispute that the condition in Mangalore Jail was not congenial to continue the accused in the Mangalore jail. While passing the order, the Sessions Court has noted that the accused was subjected to medical examination and the doctors had reported that the accused was suffering from paranoid schizophrenia and therefore, the accused should be sent to Nimhans for further treatment. It is also mentioned in the very order by the learned Sessions Judge that the doctors at Nimhans have also opined that the accused was suffering from paranoid schizophrenia. The Sessions Judge having found that the accused needs treatment continuously till the ailment is cured, released the accused on bail exercising jurisdiction under Sections 328 and 330 of Cr.P.C. Thereafter, the accused started taking treatment at Nimhans while on bail.

The aforesaid factors would clearly reveal that the accused was suffering from paranoid schizophrenia for about one year prior to the incident continuously and he was suffering from the illness even from the date of the incident and thereafter also.

Having carefully evaluated the entire documentary evidence produced by the defence, we are of the clear opinion that the accused has committed the offence while he was having unsound mind. The records clearly reveal that the appellant was suffering from paranoid schizophrenia.

The Supreme Court in the case of SUDHAKARAN v. STATE OF KERALA reported in , (2010) 10 SCC 582, at para Nos. 26 to 29 has held as follows:

"26. The defence of insanity has been well known in the English legal system for many centuries. In the earlier times, it was usually advanced as a justification for seeking pardon. Over a period of time, it was used as a complete defence to criminal liability in offences involving mens rea. It is also accepted that insanity in medical terms is distinguishable from legal insanity. In most cases, in India, the defence of insanity seems to be pleaded where the offender is said to be suffering from the disease of Schizophrenia.

The plea taken in the present case was also that the appellant was suffering from "paranoid schizophrenia". The term has been defined in Modi''s Medical Jurisprudence and Toxicology as follows:

"Paranoid Schizophrenia, paranoia and paraphrenia: Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than females. The main characteristic of this illness as, the delusional system in a personality that is otherwise well preserved. The delusions are of persecutory type. The true nature of the illness may go unrecognized for a long time because the personality is well preserved, and some of these paranoiacs may pass off as social reformers or founders of queer pseudo-religious sects. The classical picture is rare and generally takes a chronic course.

Paranoid schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sounds or noises in the ears, but later change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions."

The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purposes of claiming the benefit of the defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act.

Section 84 of the Indian Penal Code, 1860 recognizes the defence of insanity. It is defined 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."

In view of the same, in our considered opinion the accused is entitled for the benefit of provisions of Section 84of IPC.

We find from the evidence of DWs. 4 to 10 and the documents on record that the accused/appellant has proved that his cognitive faculties were very much impaired at the time when the crime was committed and consequently, he did not know the nature of the act. Since noting 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 accused is entitled to be acquitted.

The aforesaid aspects are not considered by the trial Court in proper perspective which has resulted in miscarriage of justice. On re-appreciation of the entire evidence on record in detail, we conclude that the reasons assigned and the conclusion arrived by the trial Court are improper and incorrect inasmuch as the evidence on record more particularly, the evidence of the doctors is not considered by the trial Court in the manner in which it ought to have considered in accordance with law.

Accordingly, the impugned judgment and the order passed by the II Additional District and Sessions Judge, D.K., Mangalore in Sessions Case No. 68/2006 dated 23.04.2012, convicting the appellant/accused for the offence punishable under Section 302 IPC is set aside and the accused is acquitted of the offence.

Accordingly, Appeal is allowed.

Since the appellant/accused - B. Sudhakara is in custody, he shall be released forthwith, if he is not required in any other case.