Shaik Ahmed vs The State of Andhra Pradesh

K.B. Siddappa, J.—This appeal is filed against the judgment and sentence passed in S.C. No. 16 of 1995 on the file of the learned Sessions Judge, Karimnagar. The brief allegations that led to launching of prosecution against the accused are as follows :

The deceased Rajiya Begum @ Raju Bai is the sister of P.W. 1. The accused, who is a muslim, married the deceased about 12 years ago and she was renamed as Rajiya Begum. They be got four female children. Till last six months before the death of the deceased, they lived together happily. Afterwards the accused began to suspect the fidelity of the deceased and started harassing her. On 12-9-1993 at 1.00 p.m. the accused had beaten the deceased with pestle on her head and set fire to her by pouring kerosene. On information P.W. 1, the brother of the deceased went to her house and after being told by P.W. 2 about the incident he went to Metpalli police station and gave the report Ex. P-1 at 14-30 hours. P.W. 11, Sub-Inspector of Police, registered a case in Cr. No. 111/93 u/S. 302, IPC and issued F.I.R., Ex. P-7 to all the concerned. P.W. 12, Inspector of Police, District Crime Branch, Karimnagar took up the investigation into the case. He conducted inquest over the dead body of the deceased in the presence P.W. 9 and others and prepared inquest report, Ex. P-4. He examined P.Ws. 1 to 5 and 7 and recorded their statements. He also seized Mos. 1 to 6, 8 and 9 from the scene of offence. He got the dead body of the deceased photographed by P.W. 8. P.W. 6, who is the medical officer, conducted autopsy over the dead body of the deceased and opined that the death of the deceased was due to shock and haemorrhage as a result of extensive burns and head injury. The accused was arrested by the police on 17-9-1993 at 7.30 hours and during the interrogation the accused confessed the guilt. At the instance of the accused the police recovered M.O. 7, pistol, from the ante room of his house in the presence of P.W. 10 under a cover a panchanama, Ex. P-6. M.O. 7 was deposited in the Court. The bloodstained articles were sent to the Forensic Science Laboratory for an expert opinion. On 23-9-1993 the analyst report came. After completion of investigation the police laid the charge-sheet.

On the above facts the learned Sessions Judge framed a single charge against the accused u/S. 302, IPC. When the accused was confronted with the charge, the plea of the accused was one of total denial. He claimed to be tried.

The prosecution in all examined P.Ws. 1 to 12 and marked Exs. P-1 to P-10. They also marked M.Os. 1 to 9. On behalf of the defence D.W. 1 was examined, but did not mark any documents. Considering both the oral and documentary evidence the learned Sessions Judge found the accused guilty and convicted him u/S. 302, IPC and sentenced him to suffer imprisonment for life. Against that judgment and sentence the accused filed the present appeal.

Sri M. A. Bari, learned counsel appearing for the appellant did not address the Court on the merits of the case. He only submitted that the act of the accused falls u/S. 84, IPC. Therefore the accused is not liable to be convicted for the offence punishable u/S. 302, IPC. He submitted that there is clear evidence in this case that the accused was mentally deranged. The accused was not taking food and roaming naked. Some times the accused was tied with chains. He was also pouring water when served with food. He was also taken to D.W. 2 for treatment several times. This was also supported by medical evidence of D.W. 1, who categorically stated that he treated him and that there was some improvement etc., Therefore the case falls under the four corners of Section 84, IPC. We gave our thoughtful consideration to this aspect of the case.

It is the requirement of law that at the time of doing the accused by reason of unsoundness of mind should be incapable of knowing anything of the act or that he is doing what is either wrong or contrary to law. It is well settled that there should be strict proof of these ingredients to seek remission u/S. 84, IPC. The following are the principles to be considered while dealing with insanity-(a) every type of insanity recognised is not legal insanity, unless the cognitive faculty of mind is destroyed as a result of unsoundness to such an extent as to render one incapable of knowing the nature of his act or what he is doing is wrong or contrary to law; (b) the Court shall presume the absence of insanity; (c) the burden of proof of insanity is on the accused though it is not a heavy as it is on the prosecution to prove an offence; (d) every minor mental aberation is not insanity and the circumstances indicating a mere possibility of legal insanity cannot, however, be sufficient to discharge the onus resting on the accused; (e) to attract the immunity provided in Section 84, IPC the Court has to consider whether the accused suffered from legal insanity at the time when the offence was committed. In reaching this conclusion circumstances which proceeded, attended, and followed, the crime are relevant considerations and (f) when the plea of insanity is raised, it is not the duty of the prosecution to establish, affirmatively, that the accused was capable 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 law and the natural consequences of his act. Prosecution in discharging its burden in the face of the plea of insanity has merely to prove the basic fact and rely upon the normal presumptions aforesaid. It is then that the accused is called upon to rebut those presumptions and the inference in such manner as would go to establish his plea (vide Jai Lal Vs. Delhi Administration, ).

It is true that Section 84, IPC embodies the fundamental maxim of criminal law-actus non facit reum nisi mens sit rea (an act does not constitute guilt unless done with guilty intention). It is also true that no culpability can be fastened to the insane persons as they have no free will (furifis nullar voluntas est). In short, this section, in substance, is the same as the MC Naughten Rules (1843) 8 ER 718).

Now let us see whether these requirements of law are made out in this case. P.W. 1 is no other than the brother-in-law of the accused and the brother of the deceased. Admittedly he gave his house to them to live when his deceased sister complained to him that the house they were living was not auspicious. There is consistent evidence in this case that the accused was suspecting the fidelity of his wife and they used to quarrel themselves. This was clearly spoken to by P.Ws. 1 to 5, who are the relatives and neighbours of the accused and the deceased. The question of insanity was not put to P.W. 1. P.W. 2 who is the daughter of the accused clearly stated that P.W. 1 was coming to their house quite often and looking after their family. If P.W. 1 was coming quite often to the house of the accused he should be the first person to know about the condition of the accused. No single word with regard to the insanity was spoken to by him in his evidence. There in not even a single suggestion in the cross-examination on this aspect to him. The theory of insanity was introducing in the evidence of P.W. 2 that too in the cross-examination. P.W. 2 is no other than the daughter of the deceased and the accused. She clearly stated that her father was suspecting the fidelity of her mother. They used to quarrel on this issue. On the date of incident her father took tea and all of a sudden pick up the pistol and gave blow on the head of her mother. Not only that he poured kerosene but also set fire to the deceased. She is the eye-witness to the incident. It was suggested that she was speaking false etc., in the cross-examination, but she denied the suggestion. In the cross-examination she was made to agree certain suggestions that her father was roaming naked; was tied with chains; he was taken to hospital at Hyderabad for insanity etc., Of course, she admitted all these suggestions. In our considered view, this girl being the daughter of the accused has obliged to admit those suggestions. But even in the cross-examination, she clearly denied the suggestion that the accused was made at the time of beating her mother. At this juncture it is pertinent to note that similar suggestions were made to P.W. 3, who clearly denied the same. It is suggested that two days prior to the incident the accused tore his clothes and roamed naked in the village. It was also suggested that the locality people caught hold of the accused and tied him with ropes and took him to ''Dayyala Doctor''. It was also suggested that he was tied with chains. It was further suggested that the accused used to climb trees. All these suggestions were flatly denied by this witness. In the same manner P.W. 4 was also suggested that the accused was taken to Hyderabad for treatment and the accused used to roam without clothes and he was tied with ropes etc. All these suggestions were also turned down by this witness. She clearly denied that the accused was having unsound mind. P.W. 5 is also another neighbour. All these suggestions were put to her. She also denied the suggestions as not correct. This conduct cannot be expected from a person of insane mind. Therefore there is no iota of evidence to support the theory that the accused was of unsound mind when he committed the ghostly murder. It is pertinent to note that P.W. 2 stated that the accused gave two blows with pistol on the head of the deceased and poured kerosene and set her fire. Afterwards he ran away. These acts cannot be expected from a person labouring under unsound mind. P.W. 3 is the neighbour who went first after hearing the cries of P.W. 2. She clearly stated that when she went to the scene of offence she saw the dead body of deceased and the accused pushed her and ran away. P.W. 7 is also a neighbour. He also clearly denied the suggestion that the accused was toring the clothes etc. This witness was present when the inquest over the dead body was held by the police.

That apart there is recovery part of the case. P.W. 10 is a witness for Ex. P-5, which is the admitted portion of the statement of the accused. He stated that the accused led them to the place of offence. He went into the second room and brought pestle, M.O. 7 and the same was seized by the police under Ex. P-6. If really the accused was insane, there is no question of the leading the police party and producing M.O. 7 as stated by P.W. 10.

The defence tried to prove that the accused was insane by examining D.W. 1. D.W. 1 is a professor of Psychiatry, M.G.M. Hospital, Warangal. He stated that he examined the accused in Central Prison on 21 occasions commencing from 22-9-1993 to 2-3-1994. He stated that the accused was not given any electric shock etc. He speaks about the accused having unspecified schizophrenia, this evidence is not sufficient to come to the conclusion that the accused was under the spell of madness when he committed the ghostly murder of his wife. In the cross-examination it is elicited that the patients of this type of disease will known what they are doing; but there will not be any reaction. But unfortunately in this case after beating his wife the accused threw pestle away pushed P.W. 3 and ran away. If there is no reaction as spoken to by D.W. 1 he would not have done all these acts.

The medical experts, particularly the professors, should not venture to come and give evidence in such cases in light hearted manner, with unconvincing opinions. They should come to the Court to assist the Court in coming to correct conclusion. They should not come to help the party which calls them. In this case D.W. 1 came to the Court with a mind tilted towards the accused. This is not expected from an expert.

On the merits also there is conclusive and consistent evidence of P.Ws. 1 and 2 and others, who are the relatives and neighbours of the accused, that the accused beat the deceased with pestle on the head and poured kerosene and set her fire. There cannot be any doubt on this aspect. The shelter taken by the accused u/S. 84, IPC is not bona fide. The offence committed by the accused squarely falls u/S. 302, IPC. Therefore we do not see any ground to interfere with the well considered judgment and the sentence imposed on the accused by the learned Sessions Judge.

In the result the criminal appeal is dismissed confirming the conviction and the sentence imposed on the appellant by the learned Sessions Judge in S.C. No. 104 of 1994.

Appeal dismissed.