Bharat Pandey vs State of M.P.

A.K. Shrivastava, J.

Feeling aggrieved by the judgment of conviction and order of sentence dated 5.6.1996 passed by the learned IVth Additional Sessions Judge, Bhopal in Sessions Trial No. 49/94 convicting the appellant u/s 302 of IPC and sentencing him to suffer life imprisonment, this appeal has been preferred u/s 374(2) of CrP.C.

In brief the case of prosecution is that on 25.12.1993 Dinesh Pratap Singh, Head Constable of Police Station T.T. Nagar was telephonically informed that in village Prempura, Bharat Pandey (accused) who is son of Lallan Pandey is beating his mother and sister. This fact was recorded in Roznamcha Sanha No. 2713. Thereafter, Dinesh Pratap Singh (PW-14) and D.S. Baghel, Station Office Incharge (PW-15) along with his police staff proceeded to the place of occurrence. On reaching at the spot, the police party found that the Ruby and Deventi Bai (hereinafter referred to as the deceased persons'') were lying unconscious on the spot. In the same state, they were transmitted to the hospital, where they were examined by Dr. Kale (PW-12) and referred deceased Deventi Bai to RSO Surgery. However, Ruby, the other deceased, was brought in the hospital where she was declared dead.

The accused was also arrested at the spot and interrogation was made; the statement of witnesses were recorded; spot map was prepared; ordinary and blood stained earth was also recovered from the place of occurrence. A Dehati Nalish (Ex.P-17) was lodged by PW-6, Sher Ali. After completion of the investigation, a charge sheet was submitted in the competent court, which on its turn committed the case to the court of session and from where it was received by the trial court for its trial.

On bare perusal of the order sheet of learned trial Court dated 7.2.1994, it is gathered that an application was filed on behalf of accused that he (accused) is of unsound mind and is suffering from fits of madness, as such a report be called from Jail in that regard. On going through the order sheet dated 11.2.1994 of learned trial court, it is gathered that the jail authorities sent the appellant to consultant Psychiatrist Hamidia Hospital for examination of his mental condition. On bare perusal of the order sheet dated 22.2.1994, it is found that the medical report of accused/appellant was received, according to which, he was found to be a patient of schizophrenia as such he was referred to mental hospital at Gwalior. However, vide order sheet dated 21.4.1995 on receiving the report from Mental Hospital, Gwalior that appellant was not of unsound mind as when he was examined at Gwalior and is capable to defend himself, the trial was recommenced against him by the trial court.

Since before the trial court, on 7.2.1994 an application was filed on behalf of the accused/appellant that he is of unsound mind, as such the learned trial court deferred the trial in accordance to the provision contemplated u/s 329 of Cr. P.C. The learned trial court also referred the accused for his examination to mental hospitai, Gwalior.

After receiving the medical report from Gwalior Mental Hospital since appellant was not found to be of unsound mind, trial was commenced against the appellant and charge u/s 302 IPC was framed against him, which he denied. In order to prove the charges, the prosecution has examined as many as 16 witnesses and placed Ex.P/1 to P-18 the documents on record.

The specific defence which has been taken by accused/appellant since from very beginning is that he is of unsound mind and in support of his defence, accused examined two witnesses, namely, Lalan Pandey (DW-1) and Dr. S.K. Tandon (DW-2) who examined the mental condition of appellant in compliance to the order of the trial court.

The learned trial Judge on the basis of the evidence placed on record came to hold that appellant did commit the offence for which he was charged and eventually convicted him and passed the sentence which we have mentioned hereinabove.

In this manner, the present appeal has been filed by appellant assailing the judgment of conviction and order of sentence.

The contention of Shri V.S. Choudhary, learned counsel appearing for appellant is that looking to the totality of the facts and circumstances, the conduct of the appellant mentioned in Dehati Nalish (Ex.P-17) lodged by Sher Ali (PW-6) coupled with the evidence of Sher Ali when he appeared as PW-6 in the trial court and the evidence of Kashiram (PW-1), one could infer that at the relevant point of time when the offence was committed, the appellant was of unsound mind. It has been further contended by learned counsel that the defence of appellant is further corroborated by the evidence of Psychiatrist Dr. S.K. Tandon (DW-2), under whom the appellant already undergoing the treatment prior to the incident and when he was referred in compliance to the order of the trial court, the said doctor found appellant to be of unsound mind and gave specific report (A-1) dated 12.2.1994 that the appellant is suffering from Schizophrenia and he may be sent to Gwalior/Indore Mental Hospital for hospitalization and management. Thus, according to Shri Choudhary, learned counsel for the appellant, accused/appellant is entitled for the protection as envisaged u/s 84 of the India Penal Code. In support of his contention, learned counsel has placed reliance on the decision of Supreme Court Shrikant Anandrao Bhosale Vs. State of Maharashtra, .

Per contra Shri Modh, learned Dy. Advocate General has argued in support of the impugned judgment.

Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed.

On bare perusal of Dehati Nalish (Ex.P/17) which was lodged by Sher Ali (PW-6) it is gathered that the appellant was causing Marpeet to the deceased person and since he was alarmed by this witness appellant started pelting stone on him. Thereafter, when the police reached, he was lying on the bed and was saying that he has beaten his mother and sister and they are lying in injured condition and requested the police officer to send them for treatment. This conduct of appellant pelting the stones to the independent persons like Sher Ali (PW-6) as well as after beating the deceased persons, he did not run away on the contrary he was lying on the bed calmly and was not hiding himself indicates that when the incident took place he could have suffered with the attack of Schizophrenia. In this context, it would be profitable to discuss the evidence of PW-1, Kashiram who is also an eyewitness. According to him, when he reached at the spot, he found that appellant was causing injures by iron bucket to his mother and sister. Thereafter when, this witness alarmed the accused he started pelting stones to him, as a result of which this witness came out from the house of the deceased persons. In para 6, this witness has specifically admitted that at the time of incident appellant was not in his control. He has already stated that he is unable to say that at the time of incident, he was unsound mind. It would be specific to mention here that this witness is not saying that appellant was not of unsound mind but he is unable to state that appellant was of unsound mind.

PW-6, Sher Ali who is also the author of Dehati Nalish (Ex-P/17) in para 14 has also, stated that on the date of incident, the mental condition of the appellant was not sound. All these two witnesses in single voice are saying that they are unable to state that why appellant was beating the deceased persons. There is no material on record that he was having any motive to kill his own mother and sister. True, when there is direct evidence available, the motive loses its significance but it is equally true that it is having some significance if a case would rest u/s 84 of the IPC.

On bare perusal of the record of the trial court, it is gathered that before the charge could be framed an application was filed on 7.2.1994 by the counsel of appellant that he (appellant) is of unsound mind and suffering from the fits of insanity regularly. Thereafter, an order was passed by the trial court directing Superintendent of Police, Bhopal to call the medical report of the accused. In compliance to the order of the trial court, the accused/appellant was referred to Dr. S.K. Tandon on 9.2.1994 by the office of the Medical Officer, Central Jail Hospital, Bhopal in regard to the opinion of mental state of accused/appellant. On bare perusal of Ex.A-1 dated 12.2.1994 which is a certificate issued by Dr. S.K. Tandon (Psychiatrist), it is gathered that on examining the accused/appellant, he found him to be a patient of schizophrenia and the further advised to send him to Gwalior/Indore Mental Hospital for hospitalization and management. Thus, one could infer that the appellant is a patient of schizophrenia.

Before beginning the trial in order to ascertain whether appellant is a patient of unsound mind, Dr. S.K. Tandon was examined as Court witnesses. According to the doctor, the appellant was found to be the patient of schizophrenia. The doctor further explained that in this disease the patient happens to do irrelevant things and is not capable to take any decision. The doctor has further stated that one of the symptoms of this disease is delusion and this symptom was found in the appellant. According to the Psychiatrist symptoms of this disease may appear from time to time in different persons.

In cross-examination, this doctor has specifically stated in para 4 that 4-5 years earlier also he had treated the appellant and found the symptoms of Schizoprenia in him and it was found that he is mentally insane. According to the doctor, he treated the accused/appellant for 2-3 months.

The defence also took pains to examine Dr. Tandon in his defence as DW-2 and when Dr. Tandon appeared as DW-2, he stated the same version which he had stated earlier when he was examined as court witness. On close scrutiny of the evidence of Dr. Tandon (DW-2), it is gathered that when a person is under the disease of Schizophrenia, he may become violent even against his own relatives. True, there is no document on record that appellant/accused was treated by this witness earlier to the incident, but it is equally true that Dr. Tandon (Psychiatrist) is totally an independent person and there is no possibility that he could have been won over or could have been influenced by the accused.

Section 84 IPC provides that a man who is, by reason of unsoundness of mind prevented from controlling his own conduct and deprived of the power of passing a rational judgment on the moral character of the act he meant to do cannot be legally responsible for the act. A man who by reason of mental disease is prevented from controlling his own conduct, and a man who is deprived, by disease affecting the mind, of the power of passing a rational judgment on the moral character of the act he meant to do, is entitled to the benefit of this section. A human creature deprived of reason, and disordered in his senses, is still an animal, or instrument possessing strength and ability to commit violence, but he is no more so than a mere mechanical machine which, when put in motion, performs its powerful operations on all that comes in its way, without consciousness of its own effect, or responsibility for them. In the like manner, the man under the influence of real madness has properly no will, but does what he is not conscious or sensible of doing and therefore cannot be made answerable for any consequences.

Under Section 84 of IPC an accused is protected not only when on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself.

On close scrutiny of the evidence of eye witnesses (PW-1) Kashiram and PW-6, Sher Ali coupled with Dehati Nalish Ex.P/17 and the evidence of Dr. D.K. Satpathi and Dr. C.S. Jain (PW-9) who conducted the postmortem of Ruby and Deventi Bai respectively, it is fully established that on account of the causing the injuries by the appellant to the deceased persons, they passed away. On close scrutiny of the evidence, which we have discussed hereinabove in detail in respect to the mental condition of the appellant/accused, one could infer that at the time of commission of offence, he was of unsound mind and was suffering from Schizophrenia and was totally incapable to take any decision and was totally unable to know the nature of the act which he was committing. The Supreme Court in the case of Shrikant Anandrao Bhosale (supra) in para 13, 14 and 15 has held as under :

The burden to prove that the appellant was of unsound mind and as a result thereof he was incapable of knowing the consequences of his acts is on the defence. Section 84 IPC is one of the provisions in Chapter IV IPC which deals with "general exceptions". That section provides that 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 the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused u/s 105 of the Indian Evidence Act. Under the said section, the court shall presume the absence of such circumstances. Illustration (a) to section 105 is as follows:

(a) A. accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on a.

The question whether the appellant has proved the existence of circumstances bringing his case within the purview of Section 84 will have to be examined from the totality of circumstances. The unsoundness of mind as a result whereof one is incapable of knowing the consequences is a state of mind of a person which ordinarily can be inferred from the circumstances. If, however, an act is committed out of extreme anger and not as a result of unsoundness of mind, the accused would not be entitled to the benefit of exception as contained in Section 84 IPC. In fact, that is the contention of the learned counsel for the State. It was contended that the prosecution evidence has established that the appellant by nature was an angry person and under a fit of extreme anger, he committed the murder of his wife as there was fight between them that morning and there is nothing to show that at the relevant time the appellant was under an attack of paranoid schizophrenia.

At this stage, it is necessary to notice the nature of the burden that is required to be discharged by the accused to get the benefit of Section 84 IPC. In Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat this Court has 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 that court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. The burden of proof on the accused to prove insanity is no higher than that rests upon a party to civil proceedings which, in other words, means preponderance of probabilities. This Court held that: (SCR pp.367-68)

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 rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 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 that rests upon a party to 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.

On bare perusal of the aforesaid paragraphs of the decision of the Supreme Court and applying ratio in the present case, it would be appropriate to hold that the burden of proof on the accused to prove insanity is no higher than that rests upon a party to civil proceedings which, in other words, means preponderance of probabilities.

On marshalling the evidence of PW-1, Kashiram, Sher Ali (PW-6), Dehati Nalish (Ex.P/17) coupled with the evidence of Dr. Tandon (Psychiatrist), we are of the considered view that the prosecution was unable to discharge the burden that at the time of the commission of the offence the appellant was sound and was not of unsound mind. Thus, according to us appellant is entitled to the benefit of Section 84 of IPC.

We may further add that since there was no motive of appellant to kill his own mother and sister and he used bucket as the weapon, it could be said that the prosecution has not been able to prove its case that appellant was of sound mind at the time of the commission of the offence in the peculiar facts and circumstances of the case.

Resultantly by giving the benefit of Section 84 of IPC, this appeal is allowed and the judgment of conviction and order of sentence passed by the trial court is herby set aside. The appellant is acquitted from all the charges. He is in jail, he be set at liberty forthwith if not required in any other case.