Fransis Tirkey vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC filed by the appellant herein is directed against the impugned judgment of conviction and order of sentence dated 30-7-2013 passed by the Additional Sessions Judge, Katghora, in Sessions Trial No.32/2012, by which the appellant has been convicted under Sections 302 & 429 of the IPC and sentenced to undergo imprisonment for life & pay fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months and to undergo rigorous imprisonment for two years & pay fine of Rs. 500/-, in default of payment of fine to further undergo additional rigorous imprisonment for three months, respectively.

Case of the prosecution, in brief, is that on 1-1-2012 at 1.30 p.m., the appellant firstly assaulted his mother Imliya Tirkey in her courtyard by axe by which she suffered injury and died and thereafter, went into the cowshed of Raju Tirkey and caused the death of cow-calf and thereby committed mischief which is the subject-matter of Sessions Trial No.32/2012. Thereafter, the appellant is said to have caused the death of one Nanhi Ram which is the subject-matter of Sessions Trial No.33/2012 and which is the subject-matter of Cr.A.No.819/2013 which is being dealt with separately. It is the further case of the prosecution that Police Station Katghora received information and consequently, registered morgue intimation (dehati) vide Ex.P-1 and dehati FIR vide Ex.P-2 pursuant to which FIR Ex.P-25 was registered. One Dayaram has informed that the appellant’s mental condition is not good, he has murdered his mother and one more person, which is the subject-matter of other appeal, and also murdered a calf and two other animals, no one is daring to catch him, as he is moving around in the village armed with axe. Thereafter, the police party reached to the spot and panchnama was conducted. Dead body of the mother of the appellant – Imliya Tirkey was sent for postmortem. Postmortem was conducted by Dr. Naresh Chand Dewangan (PW-7) who submitted his postmortem report Ex.P-14 in which cause of death was stated to be haemorrhagic shock due to injury to vital organ (brain) and death was homicidal in nature. Thereafter, pursuant to the memorandum statement of the accused recorded vide Ex.P-9, axe was seized vide Ex.P-10 and it was sent for chemical examination to the FSL, but the FSL report was not brought on record to hold that the said axe was used as the weapon of offence.

Statements of the witnesses were recorded under Section 161 of the CrPC.. After completion of investigation, charge-sheet was filed against the appellant before the Court of Judicial Magistrate First Class, Katghora and the case was committed to the Court of Sessions, Korba from where the learned Additional Sessions Judge, Katghora, received the case on transfer for trial and for hearing and disposal in accordance with law.

The trial Court has framed charges against the appellant for offence punishable under Sections 302 & 429 of the IPC and proceeded on trial. The appellant abjured guilt and entered into defence stating that he has not committed the offence and he has been falsely implicated.

The prosecution in order to bring home the offence examined as many as 10 witnesses and exhibited 26 documents Exhibits P-1 to P-26. Defence has examined none and exhibited no document. Statement of the appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence.

The trial Court after completion of trial and after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him calling in question the impugned judgment.

Mr. Bharat Rajput, learned counsel appearing for the appellant, would submit that the prosecution has failed to bring home the offences against the appellant beyond reasonable doubt and therefore conviction and sentences imposed upon the appellant deserve to be set aside. He would further submit that the appellant was of unsound mind and he has committed the offence in insanity, as such, he is entitled to be acquitted. Therefore, the appeal be allowed.

Mr. Sudeep Verma, learned Deputy Government Advocate appearing on behalf of the State / respondent, would support the impugned judgment and would submit that in view of the testimonies of eyewitnesses Raju Tirkey (PW-1) and Anoop Ekka (PW-2), the appeal deserves to be dismissed. The appellant has failed to take any defence that he was a person of unsound mind during the course of trial, therefore, he is not entitled for the benefit of Section 84 of the IPC, as such, the appeal deserves to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

The first question whether the death of deceased Imliya Tirkey was homicidal in nature has been answered by the trial Court in affirmative holding that the death of the deceased was homicidal in nature relying upon the postmortem report Ex.P-14 proved by Dr. Naresh Chand Dewangan (PW-14), which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question is, whether the appellant is the author of the crime?

The prosecution has relied upon eyewitnesses Raju Tirkey (PW-1) and Anoop Ekka (PW-2). Raju Tirkey (PW-1) is neighbour of the appellant who has seen the appellant causing assault to his mother by axe and thereafter, the appellant went inside the house of Raju Tirkey and caused the death of his cow-calf and one goat. Similarly, Anoop Ekka (PW-2) is also eyewitness and he has also seen the incident and has supported the case of the prosecution. Though they have also stated that the mental condition of the appellant is not good and he was behaving like insane, that argument will be dealt with separately a little latter after considering this question as to whether the appellant is the author of the crime or not. Not only this, pursuant to the memorandum statement of the appellant recorded vide Ex.P-9, axe has been recovered vide Ex.P-10, though it was sent for chemical analysis to the FSL, but no FSL report was brought on record. However, considering the testimonies of eyewitnesses Raju Tirkey (PW-1) and Anoop Ekka (PW-2), we are of the considered opinion that the appellant is the author of the crime and he has caused the death of his mother by axe.

Now, the next question is, whether the appellant, as contended, was insane at that time and he is entitled for the benefit of the plea of insanity as available to him?

Plea of insanity as provided under Section 84 of the IPC has been taken by the appellant herein before the trial Court and it has been negated by the learned trial Court and the trial Court proceeded to convict that the appellant has committed the offence under Section 302 of the IPC.

In order to consider the plea raised at the Bar, it would be appropriate to notice Section 84 of the IPC which states 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.”

The burden of proving an offence is always on the prosecution; it never shifts. Intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Section 84 of the IPC can be invoked by the accused for nullifying the evidence produced by the prosecution. This he can do by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The prosecution need not establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. It if for this reason that Section 105 of the Evidence Act places upon the accused person the burden of proving the exception relied upon by him. (See Bhikari v. The State of Uttar Pradesh AIR 1966 SC 1.)

The Supreme Court in the matter of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563 has held that the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite, mens rea. It was further held that when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. 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 can only be established from the circumstances which preceded, attended and followed the crime. It was observed as under:-

“5. … It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S. 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under S. 105 of the Evidence Act, read with the definition of "shall presume" in S. 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity. ”

Likewise, the Supreme Court in the matter of Shrikant Anandrao Bhosale v. State of Maharashtra 2002 Cri LJ 4356 has held that in coming to the conclusion that a man was labouring under defect of reason as not to know the nature of the act he was doing relevant circumstances like the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence should be taken into consideration and the Court may rely not only on defence evidence but also on what is elicited from the prosecution witnesses as well as on circumstantial evidence consisting of the previous history of the accused and his subsequent conduct in the surrounding circumstances including absence of the motive. It was further held that the accused has only to satisfy the standard of a prudent man and he need not establish his plea beyond all reasonable doubt. It was also held that 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 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 has been discharged.

The question for consideration would be, whether the appellant herein was really suffering from unsoundness of mind on the date of commission of offence i.e. 1-1-2012 and is still suffering from unsoundness of mind?

It is apparent on record that no express plea of unsoundness of mind has been taken on behalf of the appellant. However, it appears that during remand stage, on 5-1-2012, the Superintendent, Sub-Jail, Katghora has requested the Judicial Magistrate First Class, Katghora that the appellant appears to be an insane person and he has got injured himself and he is strangulating other prisoners also, therefore, he should be shifted to Central Jail, Bilaspur and thereafter, the Superintendent, Central Jail, Bilaspur also requested the JMFC on 20-1-2012 to get the appellant examined by a Psychiatrist looking to his condition and accordingly, the appellant was examined on 12-1-2012 by the Chhattisgarh Institute of Medical Sciences, Bilaspur upon which he has been diagnosed to be a psychiatric patient (psychosis) and he was advised for medical treatment. Remand papers would show that from time to time, the appellant was subjected to treatment for his mental illness, but for the reasons best known to the trial Court, the procedure envisaged under Section 328 of the CrPC was not followed. Apart from this, Raju Tirkey (PW-1) in paragraph 2 of his statement before the Court has stated that the appellant has caused murder because he was behaving like an insane person and further, in paragraph 4, he has stated that after murdering his mother, the appellant has taken her dead body by dragging it to the cremation ground. In paragraph 10 also, he has stated that the appellant used to behave like an insane person and sometimes, both his hands & legs were tied with a rope. Similarly, Anoop Ekka (PW-2) has clearly stated in paragraph 5 of his statement before the Court that before the date of incident, mental condition of the appellant was bad and on that account, his hands & legs were kept tied by a rope. Even in the morgue intimation and dehati FIR, it has been clearly stated that for 3-4 days before the date of incident, his mental condition was not good. The said fact has also been confirmed by Investigating Officer V.S. Maravi (PW-10) in his statement before the Court in paragraph 9.

Considering the evidence available on record, this Court by order dated 13-12-2022, directed for medical examination of the appellant in view of the decision rendered by the Supreme Court in the matter of State of Maharashtra v. Sindhi @ Raman (1975) 1 SCC 647 by constituting a Medical Board to determine whether the appellant is a person of unsound mind and whether in consequence of his unsound mind, he is incapable of making his defence in the appeals pending before this Court?

Now, report dated 19-12-2022 has been submitted by the Medical Board so constituted and the Assessment Report Dated 19-12-2022 signed by Dr. G.S. Singh, Associate Professor and in-charge Special Medical Board, Department of Psychiatry, CIMS, Bilaspur, states as under: -

ASSESSMENT REPORT DATED 19.12.2022

Mr. Fransis Tirkey, S/o Late Mr. Lajrus Tirkey, aged 29 years (18 years as per communication letter dated 13.12.2022 of Hon’ble Court), Resident of – Uraon Mohalla, Lampahad, Katghora, P.S. Katghora, Distt. Korba, C.G., with identification mark of scar in left leg below approx. 15 centimeter from Tibial tubrosity.

As per the directions of the Hon’ble High Court Mr. Fransis Tirkey reported at Psychiatry OPD for evaluation on 14/12/2022. With OPD No. 2212140411 and admitted in psychiatry ward on 14/12/2022 with IPD No. 20221214104348.

Mr. Fransis Tirkey is not under regular treatment from the department of Psychiatry, CIMS. He has first reported in psychiatry OPD CIMS on 12/01/2012 and diagnosis of Psychosis NOS ? and was started on Olanzapine 10mg which one after subsequent follow up tapered tp Olanzapine 05 mg as maintenance dose. Patient was last seen on 10/05/2014 on same dose. He was on maintenance treatment from Psychiatrist from state mental hospital sendri bilaspur on visit to central jail bilaspur.

As per the information provided by the patient and constables of central jail and the available treatment record, Mr. Fransis Tirkey, history is unreliable as his family members had not reported for detail history even after repeated request.

The current mental status assessment of the patient revealed that he was conscious, oriented and co-operative. Eye to eye contact was established but not sustained and rapport was partially established. The psychomotor activity was normal at the time of evaluation. He replied to the questions asked and reaction time was normal.

His mood/ affect was restricted and showed affective flattening. There was no significant abnormality in thought and perception during the cross- sectional assessment. Insight is grade -01 (complete denial of illness).

There was impairment of attention and concentration because of which a detailed cognitive assessment could not be performed.

On the basis of above, 1) it is opined that Mr. Fransis Tirkey is diagnosed to suffer from psychosis NOS. 2) Due to the current findings of illness patient is NOT FIT TO STAND TRIAL AND OF UNSOUND MIND AT PRESENT 3) The patient is required to continue his medications for improvement of his condition.

Sd/-

(Dr.G.S.Singh)

(Asso.Prof. and in-charge special medical board,CIMS,Bilaspur)

Department of Psychiatry

CIMS, Bilaspur (CG)

A careful perusal of the aforesaid report would show that it has been opined that the appellant is diagnosed to suffer from psychosis and he is not fit to stand trial and is of unsound mind at present.

In Shorter Oxford English Dictionary, Fifth Edition, Volume 2, “psychosis” has been defined as severe mental illness, derangement, or disorder involving a loss of contact with reality, freq. with hallucinations, delusions, or altered thought processes, with or without a known organic origin.

The Supreme Court in the matter of Ratan Lal v. The State of Madhya Pradesh AIR 1971 SC 778 while relying upon its earlier decisions has held that plea of unsoundness of mind under Section 84 of the IPC has to be established by the accused and the crucial point of time at which unsoundness of mind has to be proved is the time when the crime is actually committed. The burden of proving this can be discharged by the accused from the circumstances which preceded, attended and followed the crime. The Supreme Court in that case has held that tendency of setting fire to one's own clothes and house is more than mere irrationality. It is prima facie proof of insanity. In that case also, the accused was suffering from psychosis and the doctor has opined for treatment.

Reverting to the facts of the present case in light of the principles of law laid down by the Supreme Court in the above-stated judgments (supra), it is quite vivid that on 1-1-2012 when the offence is said to have been committed by the appellant, on which date he has murdered his mother and also caused death of two animals, as per the evidence of eyewitnesses Raju Tirkey (PW-1) & Anoop Ekka (PW-2), for last 3-4 days, mental condition of the appellant was unwell, even in the morgue intimation, same thing has been reported. These two witnesses have clearly stated that the appellant was behaving like insane, even they have gone to the extent of saying that after committing murder of of his mother, the appellant has dragged her dead body to the cremation ground and for that reason, both his hands & legs were tied with a rope. Remand proceeding would show that at that time he was diagnosed to be suffering from psychosis, but the learned Magistrate while making committal proceeding did not take any pain to follow the procedure envisaged under Section 328 of the CrPC. Assessment report of the Medical Board produced on the direction of this Court would clearly show that presently also, the appellant is suffering from psychosis and is unable to make his defence.

As such, there is sufficient medical and ocular evidence available on record to hold that at the time of commission of offence as well as presently, the appellant is suffering from unsoundness of mind and the trial Court has committed grave legal error in convicting the appellant herein without undertaking the procedure envisaged under Section 328 of the CrPC. The appellant has established that at the time of commission of offence by reason of unsoundness of mind, he was being incapable of knowing the nature of his act.

Consequently, the appeal deserves to be allowed for two reasons, firstly, the appellant has fully established the defence as contemplated under Section 84 of the IPC that on account of unsoundness of mind he was being incapable of making his defence before the trial Court and before this Court and secondly, inquiry as contemplated under Section 328 of the CrPC was not conducted by the learned committal Court despite the evidence of psychosis / mental illness was present before the committal Court. Accordingly, we set aside the impugned judgment of conviction recorded and sentence awarded to the appellant. The appellant is acquitted of the charges under Sections 302 & 429 of the IPC and the appeal is allowed.

In view of the provisions contained in Sections 334 & 335 of the CrPC, it will not be safe to free the appellant forthwith. We direct the jail authorities that the appellant be sent to Mental Hospital, Sendri, Bilaspur where he shall be kept under observation and treatment for such period as may be found necessary by the hospital authorities and he will be released only after the satisfaction recorded by the jurisdictional criminal court & Medical Board qua his mental illness.