Shailesh vs State of Maharashtra

A.B. Chaudhari, J—Being aggrieved by the judgment and order dated 21.12.2012 passed by the District Judge -4 and Additional Sessions Judge, Nagpur in Sessions Trial No. 367/2009 by which the appellant was convicted for the offence of triple murder and attempt to commit suicide under Section 309 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to further suffer simple imprisonment for one month, the present appeal was filed by the appellant.

FACTS:

The appellant/accused was residing in Railway Quarter, Ajani -Nagpur with his wife Sulekha, son Akash and daughter Priya. He was working as a cook and was facing financial crisis. He used to remain disturbed. On 28.4.2009 at about 10:00 p.m. three to four persons from locality informed the complainant Sumit Kailash Sharma the neighbour of the appellant that in the house of Shailesh Shukla, the appellant, quarrel was going on and he was assaulting his wife and children. Sumit Sharma rushed to the house of the accused to find that the door of the house was closed from inside. Despite knocking the door, the accused did not open it. After some time he opened the door and the complainant and others found dead bodies of his wife Sulekha, son Akash and daughter Priya lying in a pool of blood inside the room with injuries on their neck and other parts of the body. The appellant was also having injuries on his neck. The complainant Sumit reported to the police and the police registered the offences under Sections 302 and 309 of Indian Penal Code. Usual investigation was conducted by the police and thereafter charge-sheet was filed. The trial commenced. When the trial Judge found after examination of some witnesses that the appellant was not in a fit mental condition, the trial Court sent him to Medical Board, which declared him unfit for trial and therefore, he remained in hospital for treatment. After some time he was found fit for trial and the trial recommenced. Having completed the 3 evidence, the trial Judge recorded his statement and finally convicted the appellant as above. Hence, this appeal has been filed.

SUBMISSIONS :

In Support of the appeal, the learned appointed Counsel Shri D.V. Chauhan vehemently argued that the prosecution did not have any ocular evidence as such regarding the incident proper about the assault on three persons and the conviction came to be recorded only on the basis of the fact that the appellant was inside the house when the incident took place and that the dead bodies were lying in the house with several injuries. He, therefore, submitted that the prosecution did not have full and complete evidence to hold the appellant guilty of murder. Mere evidence of the complainant and others that upon opening the door they found the dead bodies and the appellant also injured would not be enough to record the order of conviction. He, therefore, prayed for acquittal of the accused. He then submitted that the appellant was found mentally unfit during trial and therefore, he was sent for medical examination and since the trial Court did not verify or record a finding as to the state of mental health of the appellant at the time of the commission of the alleged crime, it was wholly risky to convict the appellant and the order of conviction should not have been made by the learned trial Judge. He relied on the following decisions.

(i) Sanna Eranna Vs. State of Karnataka, (1983) ILR (Kar) 565 : (1983) 1 KarLJ 115 .

(ii) 1969 (3) Supreme Court Cases 176 (Vivian Rodrick Versus The State of West Bengal).

Per contra, the learned Additional Public Prosecutor supported the impugned judgment and order and submitted that the evidence of the eyewitnesses is distinct and clear as to the appellant being the author of such a ghastly crime of commission of murder of his wife and two small children with dangerous weapon i.e. "Koyta". The witnesses examined by the prosecution are in fact the eyewitnesses and the story of the defence that the witnesses examined were not the eyewitnesses is misconceived and misplaced. As to the mental health of the appellant/accused he submitted that the trial Judge had stopped the trial having found that the appellant was not mentally fit and again started the trial the appellant having been certified to be mentally fit. Therefore, the trial was not vitiated as contended by the defence. The learned Additional Public Prosecutor, therefore, prayed for dismissal of the appeal.

CONSIDERATION :

We have heard the learned Counsel for the rival parties. We have perused the impugned judgment and the reasons recorded by the learned trial Judge. We have carefully considered the rival submissions so also the issue about the mental health as strongly canvassed before us by the learned Counsel for the appellant. It is true as contended by the learned Counsel for the appellant that the appellant was found to be not mentally fit to face the trial after examination of some witnesses. However, it is a fact that the trial Judge had stopped the trial no sooner he found the appellant mentally unfit and referred the appellant for medical examination. After few days a report was received about his mental fitness and again he was put to trial. Insofar as the submission regarding the mental health of the appellant during investigation, Advocate Shri Chauhan relied on the evidence in the cross-examination of P.W.11 -Sunil Bonde, the Investigating Officer who stated that during investigation it was revealed that the mental balance of the accused was not proper and that he did not send the accused to psychiatrist at G.M.C., Nagpur. We do not think that such a vague evidence in the cross-examination brought by the appellant would automatically result into holding that the appellant was not mentally fit on the date when offence was committed or during investigation. If the appellant really wanted to establish that he was mentally unfit or was of unsound mind on the date of commission of crime it was for him to show prima facie that on the date of incident he was of unsound mind. In fact, there was no suggestion also to that effect to the Investigating Officer. What is brought in the cross-examination is that during investigation it was revealed that his mental health is not proper. We do not think that we can stretch the so-called admission of the Investigating Officer P.W.11 - Sunil Bonde to mean that the appellant/accused was mentally ill or of unsound mind on the date and time of the incident of commission of murder. We, therefore, do not accept the submission made by Advocate Shri Chauhan. At any rate, what we find from the record is that the trial Judge had sent the accused for medical examination immediately after he found after the examination of some of the witnesses that the appellant was required to be examined mentally. The trial Judge stopped the trial till the time he received the certificate from the hospital that he was again fit for trial. It is thereafter the trial Judge restarted the trial and completed it. We find that the trial Judge has taken all steps and care and caution in the matter and no fault can be found out with him.

When the appeal came up for final hearing and since the issue was raised by the learned Counsel for the appellant about the present mental health of the appellant, we made the following order on 22.7.2015, which we quote as under.

"After commencing the hearing of this appeal yesterday, in order to have the entire information about the case, we have posted the matter for hearing today. Today, learned counsel for the appellant has invited our attention to the entire record and submitted that on 23.05.2010 Exh. -44 application was moved for examination of the accused. The District Judge, who was conducting the trial, having convinced about the mental illness of the appellant-accused, passed an order on 08.02.2011, suspending the trial owing to the mental illness of the accused and directed the concerned Medical Authorities in Jail to submit the Medical Status Report in respect of the appellant, within three months. Therefore, on 23.06.2011 a team of doctors checked the mental status of the appellant and reported that he was making irrelevant talks and his capacity of judgment was impaired. Thereafter, on 03.07.2012, the Mental Hospital reported that accused was fit for trial and, therefore, was discharged. Accepting that letter about fitness, the trial Court then conducted and completed the trial and convicted the appellant by impugned judgment. In the light of the above facts, in order to leave no room for doubt, we think it safe to have the examination of mental health of appellant-accused in the light of the following observations of the apex Court in Vivian Rodrick..vs..The State of West Bengal; 1969 (3) SCC 176.:

"27. It is no doubt seen from the order passed by the High Court on July 19, 1967 that counsel for the State as well as counsel appointed for the appellant by the State, to argue his appeal, had represented to the Court that Chapter XXXIV, Cr.P.C. did not apply, meaning thereby that Section 465, Cr. P. C. had no application to appeals. They seem to have further urged that in the interest of justice, the hearing should not be postponed and that, on the other hand, the appeal should be heard and disposed of on merits. In fact it is also seen that the amicus curiae counsel for the appellant had further represented that "''his client would not suffer any handicap in the matter of proper hearing of the appeal on the evidence recorded in the trial nor in the matter giving proper instructions to his lawyers, even if he was under some disability regarding his state of mind. These representations seem to have persuaded the learned Judge of the High Court to hold that there is no bar of hearing and disposing of an appeal, even if the accused-appellant is of unsound mind, or even insane, at the time when the appeal is taken up for hearing.

Whatever may be the legal position regarding applicability of Section 465, Cr. P. C. to appeals, we are not inclined to agree with the proposition enunciated by the learned Judges that there is no bar to "''hearing and disposing of an appeal, even if the accused-appellant is of unsound mind or even insane at the time when the appeal is taken up for hearing"''. It must be remembered that in this case the appellate Bench had passed an order on January 11, 1965 that the Criminal Appeal No. 5 of 1964 would be heard under Section 411-A(a), (b) and (c), Cr. P.C. That means that the appellant was entitled to challenge his conviction not only on any ground of appeal which involves a matter of law only, but also to challenge his conviction on any ground which involves a matter of fact. Under those circumstances, it is clear that the appellant''s appeal before the High Court involves also the determination of questions of fact and instructions which the appellant might give to his lawyer as to the hearing of the appeal, might well prove to be vital; but by reason of his unsoundness of mind and the consequent inability on his part to instruct his lawyer in the conduct of his appeal, it must be held that no effective opportunity in the matter of hearing the appeal had been provided to the appellant. When the medical report was that the mental condition of the appellant was worse and that he was of unsound mind and it was the face of that report that the appeal was directed to be taken up for hearing, it is difficult to hold that a proper and reasonable opportunity had been provided to the 9 appellant with respect to his appeal, because it is impossible for the appellant to make himself heard either in person or through a lawyer when he is of unsound mind.

In our opinion, when the report is that an accused-appellant is of unsound mind, it is reasonable to infer that he is incapable of making his defence. The Court, in the circumstances, is bound to afford him the same protection to which he would have been entitled had he been if unsound mind at the time of the trial.

30 to 35......

To conclude, we are of opinion that in the circumstances of this case, it was not proper for the Division Bench of the High Court to have heard and disposed of Criminal Appeal No. 5 to 1964. In consequence, the judgment of the High Court dated September 19, 1967 in the said appeal is set aside and the appeal remanded to the High Court for fresh disposal and hearing, in accordance with law and in the light of the observations contained in this judgment."

The Jailer shall take immediate steps to furnish a report to this Court about the present mental health of the appellant-accused since we have heard the appeal and would like to complete the hearing at the earliest.

Stand over to 07.08.2015.

Registry is directed to communicate this order to the concerned Jailer by fax in addition to regular mode of service."

Pursuant to our order aforesaid, we have received the report from the Central Prison, Nagpur accompanied with the certificate from the Medical Superintendent, Regional Mental Hospital, Nagpur dated 5.8.2015 in which it is stated that the appellant was examined and after examination he is found to be fit to stand trial. We, thus, find that during the hearing of the appeal mental health of the appellant is sound. We, therefore, think that proper care has been taken by the trial Court as well as by us in the matter.

Coming to the merits of the matter, we find that P.W.2 -Arun Tiwari is the eyewitness, who deposed in paragraph no.2 thus :

"2. On 28.4.2009 at about 10.00 p.m. I heard fights in the house of the accused. I went to his house. The accused was not opening door of the house. Thereafter police came. After the police informed him, he opened the door. On opening the door we found the wife, son and daughter lying dead in the house. They were injured and there was blood. Shailesh had also injured himself on his neck and he was also bleeding. Shailesh was taken to the hospital and the dead bodies were also taken to the hospital. Police seized one blood stained Koyta from his house. Accused was stressed because of poverty. He had no fixed income."

P.W.3 -Sumit Kailash Sharma in fact is the complainant or informant whose FIR (Exh.21) was registered by the police. His evidence is fully corroborated by FIR lodged by him. In paragraph no.1, P.W.3 -Sumit Kailash Sharma deposed as under :

"1. Earlier I was residing at Rly. Qtr. no. D-5 Ajani. I know the accused. He was residing in the same Qtrs area after 5-6 houses. I do not know who stayed in the house of Shailesh. On 28/4/2009 I came home at night at 10 p.m. two-three children stated that fight is going on in house of Shukla. Hence, I went to house of Shukla. His door of house was closed. I called him out twice or thrice. He did not open the door. I heard crying voice. I asked the children to call other elderly persons from the area. I went to Imamwada P.S. and brought the police. Police opened the door. I did not see inside. Police took out Shukla outside the house. He was bleeding from neck. He was taken to hospital...."

We have carefully checked the cross-examination of these witnesses and we find that there is absolutely nothing in their examination for damaging their testimony. We have checked up the reasons recorded by the trial Judge for assessment of the evidence of the eyewitnesses and we find that the assessment of evidence is as per the evidence that was recorded before the trial Judge and there is no perversity or any infirmity. We, therefore, agree with the finding of the trial Court for accepting the evidence of these witnesses to hold that the appellant has committed the triple murder.

In addition to the above evidence, we find that the scientific evidence i.e. the Chemical Analyzer''s report (Exh.29) clearly pointed out to the guilt of the appellant. We quote the following extract from paragraph no.19 of the judgment.:

"According to his version, he was seized the clothes of accused from his person vide Exh.-76. Bare perusal of C.A. report Exh.-29 goes to show that the clothes of the accused are having human blood. This also corroborated the version of PW 3 Sumit Sharma and PW 9 Balaji Pandhare regarding presence of accused inside the house. Therefore, the prosecution could succeed in proving the circumstances that the accused was present inside the house. Let us recapitulate the circumstances which have been proved by the prosecution.

1] dead bodies of deceased Sulekha, Akash and Priya were lying inside the house of the accused.

2] The blood stained Koyta/chopper is seized from the house of the accused.

3] accused was present inside the house and

4] there was pool of blood in the entire house of accused."

We also find that the trial Judge has applied Section 106 of the Evidence Act. But then since we have direct evidence tendered by the prosecution before the trial Judge it will make no difference whether the doctrine of Section 106 is applied or not.

The judgments relied upon by the learned Counsel for the appellant above do not have any application and we have already given reasons as to the procedure followed by the trial Court as well as this Court as to the contention regarding the mental health of the appellant/accused. In the result, we find no merit in the instant appeal. Hence, the following order.

ORDER

Criminal Appeal No. 111/2013 is dismissed.

The fee payable to the learned Counsel appointed for appellant is quantified as rupees five thousand.