Bhaskar vs The State of Maharashtra

Z.A. Haq, J.—Heard Shri Nikhil Tekade, learned Advocate for the appellant and Shri M.K. Pathan, learned Additional Public Prosecutor for the respondent/State. The appeal arises out of the judgment passed by the learned Additional Sessions Judge-II, Chandrapur in Sessions Case No. 43 of 2007 on 30th of September, 2009, convicting the appellant for the offence punishable u/s 302 of the Indian Penal Code and sentencing him for life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for two months.

The case of the prosecution is-

Katuji Pal (deceased) was the father of the appellant - accused. The appellant - accused was residing in the house along with his father, mother and sister Darshana. Katuji Pal (deceased) had two sons and two daughters. The elder son was residing separately.

On 4th of January, 2007, at about 9 a.m., when Katuji (deceased) and the appellant - accused were taking lunch, Katuji (deceased) told the appellant - accused because of which the appellant - accused got annoyed and threatened the deceased in the following words After the meal, deceased Katuji went to the field taking the bullock cart. The appellant - accused followed him. Darshana saw that the appellant - accused was annoyed, she apprehended that he may beat Katuji and therefore, she followed the appellant - accused. The appellant - accused went to the field where Katuji was working, took out Ubhari (stick) from the bullock cart and gave a blow of Ubhari on the head of Katuji. Katuji requested the appellant - accused not to beat him. Deceased Katuji fell down. The appellant - accused continued beating Katuji on his back, hand and legs. Darshana shouted and hearing her shouts the neighbouring cultivators Bhaurao Pal, Ambadas Pal, Kawadu Pal and Tulshiram Pal came running to the spot. The appellant - accused, on noticing these persons, ran away from the spot with the Ubhari. As Katuji was injured, he was taken to the hospital and on the way to hospital he succumbed to the injuries.

Darshana lodged oral report (Exh. 42) on the basis of which the offence publishable u/s 302 of the Indian Penal Code came to be registered.

The appellant - accused, on the same day, went to the house of his other sister Kamal at village Kawati with the Ubhari in his hand and confessed before her that he had killed their father and told her that if she wanted to go to the house of Katuji, she may go. The appellant -- accused left the house of Kamal. Subsequently, he was apprehended by Police Officer near Rajghad on Mul - Chamorshi road and one Ubhari was seized as per the seizure panchanama (Exh. 35). The appellant - accused was brought to the Police Station and was arrested.

The inquest panchanama (Exh. 36) was prepared and the dead body of Katuji was sent for post mortem and the post mortem report (Exh. 50) was obtained. The Medical Officer opined that the cause of death was due to head injuries. The spot panchanama (Exh. 39) was prepared. From the spot, blood stained soil was gathered and as per the seizure panchanama (Exh. 37), the clothes of the appellant - accused (Articles B and C) were seized vide Exh. 45. The blood samples and clothes of Katuji (deceased) were also seized. The Ubhari was sent to the Medical Officer who opined as per Exh. 51 that the injuries as shown in the post mortem might be caused by the same. The Investigating Officer obtained the extracts of the register (Exh. 75) of the preventive action which was taken against the appellant - accused earlier. The Chemical Analyzer''s reports at Exhs. 18, 19 and 20 were obtained and filed on record. After completion of the investigation, the prima facie involvement of the accused was revealed and therefore, charge-sheet was filed in the Court of Judicial Magistrate (First Class), Mul which was committed to the Court of Sessions.

The Charge was framed against the appellant - accused for the offence punishable u/s 302 of the Indian Penal Code. The appellant - accused pleaded not guilty and claimed to be tried. The learned Sessions Judge proceeded with the trial and concluded that the prosecution had proved that the appellant-accused committed the murder of Katuji Pal by giving a blow of Ubhari on his head and intentionally and knowingly caused his death. The learned Sessions Judge concluded that the appellant - accused is not entitled to get the benefit u/s 84 of the Indian Penal Code and convicted the appellant - accused as stated above. The judgment passed by the learned Sessions judge convicting the appellant - accused and sentencing him, is challenged in this appeal.

Shri Nikhil Tekade, the leaned Advocate for the appellant, has submitted that there is only one eyewitness Darshana on the basis of whose evidence the conviction is based According to the learned Advocate, alleged extra judicial confession of the appellant - accused before his sister Kamal also cannot be considered for convicting the appellant - accused. The learned Advocate has further submitted that both the sisters - Darshana and Kamal - have specifically denied that the appellant - accused was suffering from mental disorder when there is sufficient material on record to show that the appellant - accused suffered from mental disorder. According to the learned Advocate, the specific denial by both the sisters in respect of the mental condition of the appellant - accused shows that they are trying to implicate the appellant - accused so as to divest him from all the rights of inheritance. The learned Advocate for the appellant - accused has submitted that in any case in view of the evidence of Dr. Chandrashekhar Bonde (PW 1), it is clear that the appellant - accused was suffering from schizo affective psychosis depressed and therefore, the appellant -- accused is entitled for the benefit u/s 84 of the Indian Penal Code. Shri Takade, the leaned Advocate, in support of his submission that the appellant - accused is entitled for benefit u/s 84 of the Indian Penal Code, has relied on the following judgments -

1) Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat,

2) Ms. Leena Balkrishna Nair, Yerawada Central Prison Vs. The State of Maharashtra,

3) Shrikant Anandrao Bhosale Vs. State of Maharashtra,

The learned Additional Public Prosecutor Mr. Pathan has supported the judgment passed by the learned Additional Sessions Judge. Learned APP has submitted that there is no reason to disbelieve the testimony of Darshana who is real sister of the appellant - accused. He has submitted that in addition to this, there is extra judicial confession made by the appellant - accused to his other sister Kamal and there is no reason to discard her testimony also. According to him, nothing has come on the record to show that both the sisters of the appellant - accused have unnecessarily implicated the appellant--accused. Mr. Pathan has submitted that earlier also a Chapter Case bearing No. 138 of 2004 was registered against the appellant - accused on the report of Katuji Pal and this shows that the appellant - accused since long time had some grudge against his father. The learned APP has submitted that the judgment given by the learned Sessions Judge is well reasoned and takes into consideration all the relevant aspects and does not require any interference.

We have examined the record with the assistance of the learned Advocates appearing for the parties.

Dr. Chandrashekhar Bonde (PW 1) has stated that letter dated 28th of June, 2007 was received from the Ad hoc Additional Sessions Judge, Chandrapur requesting that the appellant - accused be admitted in the hospital for check up. He has stated that the constable along with the letter had come on 1st of July, 2007 and had also brought the appellant - accused and the appellant - accused was admitted in the hospital at 6.20 p.m. He has stated that on the same day, the Medical Officer on duty examined the appellant-accused, then on the next day he was examined by Psychiatrist, Social Worker, Acupressure therapist and Medical Officer of the ward and after keeping the appellant - accused in the admission ward for some time, he was referred to the ward of criminal patients. He has stated that on 10th of July, 2007, the appellant - accused had expressed death wish and therefore, he was kept under special watch and was observed for 24 hours by the staff. He has stated that on 11th July, 2007, the appellant - accused was evaluated for mental disease and he was prescribed a course of Electro Convulsive Therapy Sessions. He has stated that the appellant - accused was given treatment of Electro Convulsive Therapy on alternate day. He has stated that after completing the course of Electro Convulsive Therapy, the appellant - accused was evaluated by Psychiatrist on 20th of July, 2007 and further course of one more electro convulsive therapy was given to the appellant - accused on 24th of July, 2007. He has stated that after the treatment, the appellant - accused was examined and was found to be conscious, cooperative, oriented and he was relevant and not having any suicidal idea. He has stated that after the Psychiatrist advised to stop Electro Convulsive Therapy treatment, the appellant - accused was shifted to the special ward and general treatment was given to him. He has stated that the appellant - accused was produced before the Vigilance Committee on 2nd of August, 2007 but could not be examined by the Committee for want of Forum. He has stated that the appellant - accused was produced before Vigilance Committee on 6th of September, 2007 and after evaluation by the Board of Vigilance Committee, the appellant-accused was declared fit for discharge and fit for trial.

In the cross-examination Dr. Chandrashekhar has stated that the appellant - accused was suffering from schizo affective psychosis depressed which is a major mental illness. In the cross-examination he has stated that the patient suffering from such type of illness is likely to lose control over his mind. In the cross - examination he has further stated that the appellant - accused was lunatic and therefore, the shock treatment was given to him.

In our view, the testimony of Dr. Chandrashekhar Bonde, beyond any doubt, proves that the appellant - accused was suffering from schizo affective psychosis depressed, which, according to him, is a major mental illness. In the case of Dahyabhai vs. State of Gujarat (supra), the Hon''ble Supreme Court has laid down that if evidence comes on record, which may raise a reasonable doubt in the mind of a judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code and if the Judge has such reasonable doubt, the accused has to be acquitted, as in such a situation the prosecution fails to prove conclusively the guilt of the accused. It is further laid down that even if the accused is not able to establish conclusively that he was insane at the time he committed the offence, the evidence which is 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 in that case, the Court would be entitled to acquit the accused on the ground that the general burden of proof is not discharged by the prosecution.

The prosecution has not brought the motive of the offence, on the record. If we go by the evidence of Darshana (PW 3), then it is clear that even she doubted that the appellant - accused may cause some harm to their father, which creates a doubt in our mind that even Darshana (PW 3 ) knew about the mental condition of the appellant-accused. It goes unexplained on record as to why even though Darshana (PW 3) had some apprehension that the appellant - accused may cause harm to her father and she followed the appellant-accused, however, she did not take any preventive measure to stop the appellant - accused or she did not call any other person for help.

Kamal (PW 6) has sated that the appellant - accused made extra-judicial confession before her that he had murdered their father. If the evidence of Kamal (PW 6) has to be accepted along with the fact that the appellant - accused has not run away, it shows that the mental condition of the appellant - accused was not proper. All these facts along with the evidence of Dr. Chandrashekhar Bonde (PW 1) shows that the appellant - accused was mentally unsound.

Mr. Pathan, learned APP has submitted that even if it is to be held that the appellant - accused suffered from mental illness, as per the evidence of Dr. Chandrashekhar (PW 1), at the most, it can be said that he was suffering from mental illness in June/July, 2007. The learned APP has submitted that there is nothing on record to show that the appellant - accused was suffering from the mental illness since earlier and was under the attack of insanity when he committed the offence on 4th of January, 2007. Mr. Pathan, the learned APP, submitted that the burden to prove that the appellant - accused was suffering from mental illness at the time when the offence was committed, was on the appellant - accused and when the appellant accused fails to discharge the burden, he is not entitled for the benefit u/s 84 of the Indian Penal Code. We are not inclined to accept the submissions as made by the learned APP. The material on the record is sufficient to hold that the appellant - accused suffered from mental illness. The Hon''ble Supreme Court in the case of Dayabhai vs. State of Gujarat (supra), in paragraph No. 7, has laid down the Tests as follows -

(7) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial, (2) There is a rebuttal presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than the rests upon the party of civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution, was not discharged.

In view of the above, once we conclude that the appellant--accused suffered from mental illness, in our view he is entitled for the benefit u/s 84 of the Indian Penal Code. In our view, the prosecution has failed to discharge its burden of proving beyond doubt that the appellant - accused has committed the act with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. Further more, the prosecution has not brought on record the mens rea for the offence. In such circumstances, we pass the following order. The appeal is allowed.

The judgment passed by Additional Sessions Judge - II, Chandrapur in Sessions Case No. 43 of 2007 on 30th of September, 2009 is set aside.

The appellant is acquitted of the offence with which he has been charged.

The appellant is directed to be set at liberty forthwith, if he is not required in any other crime.

The fees of the learned Advocate appointed to appear on behalf of the appellant is quantified at Rs. 5,000/- (Rupees Five Thousand only.)