Narsibhai Dahyabhai Kanazariya vs State of Gujarat

D.H. Waghela, J.—By this appeal from Jail, appellant has called into question the judgment and order of his conviction dated 25.9.2002 of learned Additional Sessions Judge, Jamnagar in Sessions Case No. 75 of 2001. There is no appeal memo worth the name but only an application by the appellant dated 4.10.2002 seeking legal aid to challenge his conviction for the offences punishable under Sections 302 and 307 of IPC and the sentence pursuant thereto. The prosecution case, according to the charge framed on 12.7.2002, in substance, was that appellant aged 40 had on 22.3.2001 killed his own daughter and son aged 15 and 5 respectively by causing fatal injuries with an axe; and tried to kill his wife as well as another son in similar fashion.

The prosecution mainly examined and relied upon depositions of Dhaniben [P.W.1 Exh.9], the wife and Gokalbhai [P.W.3 Exh.11], the cousin brother of the appellant. It has come on record through their depositions that the appellant and his wife were unskilled labourers and having 4 children. At around 4.00 A.M. in early morning of the fateful day, the appellant was stated to have hacked to death with an axe his son and daughter and assaulted his wife and another son, without any apparent rhyme or reason. There was no history or evidence of any quarrel in the family. It was categorically stated by the wife that the appellant was not freely talking, was not going to work and was remaining taciturn or was speaking to himself. The other witness also stated in his cross-examination that the appellant was behaving in the aforesaid fashion since a long time and on the day of the incident, he had to be caught and tied up and taken to the hospital in a truck. It was on the basis of the above and other detailed medical evidence about injuries and cause of death that, impugned judgment convicting the appellant and sentencing him, inter alia, to imprisonment for life was delivered without even a reference to the clear indication of doubtful mental condition of the appellant.

Upon the matter being argued for admission before this Court, it was pointed out on behalf of the appellant that the accused ought to have been first sent to the doctor before being tried. Therefore, the jail authorities were ordered to keep appellant present on 13.2.2003 and jail doctor was directed to submit his preliminary report about his state of mind. Pursuant to that order, the appellant and some record was produced to indicate that he was examined and treated by Psychiatrist of Civil Hospital, Ahmedabad, according to whom, it was found that appellant was suffering from psychiatric disorder from his history, behaviour, attitude, interviews etc. and he required regular treatment. It was observed by the Court, after marking demeanor of the appellant and putting certain questions that he was not able either to understand or reply to any question put to him. Delving into the original record of the case, it was found that the investigating officer had submitted the application dated 23/27.3.2001 to learned J.M.F.C. Khambhalia for sending the accused for his mental check-up as he was reported to be in deep depression and had an attack of schizophrenia about one year before the offence. Learned J.M.F.C. Khambhalia had made order on that application and directed Jail Superintendent, Jamnagar to arrange medical examination of the accused as regards his mental illness and submit detailed report. Thereafter, request was twice made for production of the report and then without receipt of such report, the same learned Magistrate had committed the case on 11.6.2001.

After the case was committed to the Sessions Court, the accused put his thumb impression on handwritten application to defend himself through Legal Aid advocate and thereafter, charge was framed on 12.7.2002. The trial commenced on that day and concluded on 25.9.2002 when judgment was delivered.

This Court has, in the order dated 13.2.2002 in this very proceeding, observed that if learned Judge who tried the case had taken little care, then he would have immediately stopped further proceedings and sent the accused for his medical check-up. It was observed: "Unfortunately, poor appellant accused was defended before trial court by an advocate arranged through Legal Aid and it seems that the learned Counsel who had appeared before the trial court has also not taken much care to make any such request to the learned Judge...." Further directions seeking explanation of learned J.M.F.C., who made the committal order and the Superintendent, Jamnagar Jail were issued.

On the next date, i.e. 27.2.2003, jail record of the appellant was produced before this Court and it was found therefrom that he had remained in jail as undertrial prisoner for more than one and half year and undergone actual sentence for merely a period of 5 months. The certificate dated 23.2.2003 of Medical Officer [GMS, Ahmedabad Central Jail] stating that he was suffering from psychiatric disorder was produced. Pursuant to the previous order, the explanation of learned J.M.F.C. was submitted and considered and, Dr. Manubhai Parmar, Associate Professor of Psychiatry, M.P. Shah Medical College, Jamnagar submitted his report dated 21.2.2003, wherein it was stated that accused was examined by Dr. R.R. Gandhi on 4.4.2001 at Jail Dispensary, Jamnagar. He was also examined on 11.4.2001 and as per examination report of Dr. Gandhi, he had opined that the patient was suffering from psychiatric illness i.e. schizophrenia.

Thus, immediately after the incident on 23.1.2001, Investigating Officer himself had submitted his application to the learned Magistrate for mental check-up of the accused because of his behaviour in police custody for couple of days. And, the medical check-up thereafter showed that he was in fact suffering from schizophrenia. Again, this Court [Coram: Hon''ble Mr. Justice B.J. Shethna & Mr. Justice M.S. Shah] observed in the order dated 2.5.2003 that, even after the order dated 27.3.2001 of learned J.M.F.C., in an undue haste, the case was committed without report of the Medical Officer. It was further observed;

Considering the Report of the medical Officer as well as the evidence of Daniben, wife of the accused and the Application dated 23/27.3.2001, submitted by the I.O. to the learned Magistrate for mental check-up of the accused, prima facie it was clear to us that the appellant - accused was suffering from schizophrenia at the time of commission of an offence i.e. on 22.3.2001. However, no one was [sic] came forward from the family of the accused to attend him or inquired about him in the jail after lapse of about 2 years about the mental condition of the appellant. Under the peculiar facts and circumstances of the case we are of the considered opinion that the accused needed further treatment in jail....

The appeal was kept for further orders before the same Court on 29.8.2003. On 29.8.2003, the appeal was admitted and the appellant was ordered to be released on bail on furnishing personal bond of Rs. 500/-.

Fortunately for the accused, learned Counsel Ms. Shilpa R. Shah was recently appointed to assist the Court on behalf of the appellant by way of Legal Aid and after delving into the record of the trial court and the aforesaid previous orders, it was pointed out that the appellant was not in a fit state of mind and was indeed suffering from serious mental disorder at the time of commission of the offence as well as committal of the case and the trial was concluded in an unholy haste without considering the most material factual aspect which had come on record in the evidence of the prosecution itself. It was submitted that the legal assistance provided to the appellant at the trial was inadequate, to say the least and learned Sessions Judge had also completely failed in properly discharging his duty in so far as the application of the Investigating Officer, and the orders of learned J.M.F.C. and the deposition of wife of the appellant were not duly considered. She emphasized on the commentary based on several judgments as under, in R.N. Nelson''s IPC [10th Edition] P.604:

[26] Burden of Proof

From the plain reading of the said provision, it is clear that in order to claim the benefit under the section, the defence has to show that at the time of occurrence of the incident, he was unsound mind.[ Madhukar G. Nigade Vs. State of Maharashtra,

The rules of burden of proof in the context of the plea of insanity are:

[i] that the prosecution must prove beyond reasonable doubt that the offence was committed by the accused that the requisite mens rea and the burden continues from the beginning till the end of the trial;

[ii] that it is a rebuttable presumption that the prisoner was not insane when he committed an offence in the sense set forth in Section 84, IPC;

[iii] that the accused may rebut the presumption of sanity at the relevant time bringing the case within Section 84, IPC, by producing oral, documentary, circumstantial and other materials and he may discharge the burden by establishing a reasonable probable case. The accused is not called upon to establish the element of Section 84, IPC, by producing evidence beyond reasonable doubt and;

[iv] that even the accused fails to establish affirmatively or conclusively, that he was of unsound mind and committed the act under the circumstances set out in Section 84, IPC, but raises a reasonable doubt in the mind of the court as regards presence of essential ingredients of the offence, which of course includes, mens rea the requisite criminal intention, 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.[ Khuraijam Somoi Singh Vs. State of Manipur,

Learned APP fairly conceded that obviously the plea of insanity and the facts of the case attracting general exception envisaged in Section-84 of IPC were not considered in the impugned judgment by the trial court. Under the circumstances, inspite of sufficient proof of ghastly killing of two innocent children, the appellant appeared to be entitled to be acquitted.

Dealing with a similar case on an earlier occasion in Criminal Appeal No. 1061 of 1996, [oral judgment dated 29.9.2005], it was observed by this Court [Coram: M.S. Shah and D.H.Waghela JJ], as under:

It is true that there is no direct evidence about the state of mind of the accused person at the time the offence was committed. Therefore, it has to be gathered and inferred from the evidence on record and tested by the standard of preponderance of probability. As held by the Supreme Court in Shrikant Anandrao Bhosale Vs. State of Maharashtra, the burden of proof upon the accused person is no higher than that rests upon a party to civil proceedings. Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof, resting on the prosecution was not discharged. It is further observed by the Supreme Court in the judgment that .. regarding the state of mind of the accused at the time of commission of offence, in our opinion, ordinarily that would be an aspect to be inferred from the circumstances.

A monograph on the specific topic of schizophrenia written by Dr Laxman Dutt, M.B., DPM, MD (Psychiatry), MAPA (USA), FIPS, Honorary Psychiatrist at the Sheth V.S. General Hospital and Honorary Associate Professor of Psychiatry at NHL Municipal Medical College, in vernacular, imparting elementary information about ''schizophrenia'' was perused. According to it, schizophrenia, if not treated, generally aggravates. One out of hundred persons on an average suffers from this disease caused, inter alia, by lower income and social problems caused thereby. All the patients affected with schizophrenia require continuous treatment. Such patients suffer from delusions about somebody controlling or persecuting them and during the spells of delusions, such patients tend to become violent or commit suicide. Such patients could be unable to control their impulses. It is a mental ailment which feeds on itself and causes very frequent attacks if not treated and the patient, inter alia, suffers poor nutrition. If the disease is not fully and properly treated, it becomes chronic after two years and the recurrence of its attacks could be attributed to cessation of medical care and stopping of the necessary medicines.

8.1 According to Modi''s Medical Jurisprudence and Toxicology (21st Edition), in vast majority of cases of paranoid schizophrenia suspiciousness is a characteristic symptom at an early stage which gradually develops into delusions of persecution. When delusions affect his behaviour he is often a source of danger to himself and to others. Schizophrenics occasionally commit murder as a result of delusional ideas that the victim in some way is persecuting them. Psychopaths may kill as part of a general pattern of violence, in which case, the death may be an unintended result arising through loss of control.

In the facts of the present case, in absence of any enmity or quarrel or any apparent reason for appellant to kill his own children, it was clear that the appellant could not be attributed any mens rea in the very nature of things and the state of his mind being unsound could be inferred. Thereafter, there was sufficient evidence of his history of suffering from mental disorder and being ultimately diagnosed for schizophrenia. Therefore, we have no hesitation in holding that the appellant was entitled to benefit of the provisions of Section-84 of IPC and entitled to be acquitted. Accordingly, the appeal is allowed, the impugned judgment and order is set aside and the bail bonds executed by the appellant are ordered to be cancelled.

Before parting with the judgment, we have to regretfully note the state of affairs at the trial court level as far as the Legal Aid is concerned and must also place on record our appreciation of rare assistance rendered at the level of the High Court, initially by learned Counsel Mr. Supehia and presently by Ms. Shilpa R. Shah.