plea of insanity may be stated in the following propositions:(1)
The prosecution must prove beyond reasonable doubt that the
appellant 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 under
Section 84 of the Indian Penal Code. The accused may rebut this
presumption by placing before the court all the relevant
evidence-oral, documentary or circumstantial, but the burden of
proof upon the accused is no higher than that which rests upon
a party to civil proceedings. 3) Even if the accused is not able to
establish conclusively that he was not of sound mind 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. Similar
view was taken by the Supreme Court in the case of Shrikant
Anandrao Bhosale Vs. State of Maharashtra reported in 2002
Cri. L.J. 4536.
19 The circumstances that stand proved in this case in
relation to the defence of the appellant of lunacy are as under:
(I) since at least 4 months prior to the incident the
appellant had a history of psychiatric illness;
(ii) soon after the incident the appellant was admitted
in the Government mental hospital for his mental
illness;
(iii) his mental illness was to such an extent that he
was given electric shocks in addition to other
treatment.
20 In the present case, however, the above mentioned
factors are not the only factors but it is totality of the
circumstances seen in the light of the evidence on record which
proves that the appellant was suffering from unsoundness of
mind. The appellant used to speak irrelevant things. He also
had fear in his mind and idea that he was being persecuted. His
memory and intelligence was impaired. He was also suffering
from depression and excessive worry about the future. The
evidence of DW-1 shows that prior to the incident the appellant
had been given medicines for one month in relation to his
unsoundness of mind. The unsoundness of mind before and
after the incident is a relevant fact. From the circumstances of
this case an inference can certainly be drawn that the appellant
was under a delusion at the relevant time and thus at the time
of the incident he was under an attack of mental illness.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.113 OF 2007
SHRI DEEPAK BAPURAO YEDAGE
Vs.
THE STATE OF MAHARASHTRA
CORAM: SMT. V.K. TAHILRAMANI &
A.S. GADKARI, JJ.
Date: 7th September 2015.
Citation; 2015 ALLMR(cri)4453
1 The appellant original accused has preferred this
appeal against the judgment and order dated 30th November
2006 passed by the learned Sessions Judge, Pandharpur in S.C.
No.18 of 2005. By the said judgment and order, the learned
Sessions Judge convicted and sentenced the appellant under
Section 302 of the Indian Penal Code for causing death of
Indubai. The appellant was also convicted under Sections 324
and 452 of IPC for entering into the house of PW-7 Pradeep and
PW-8 Suman and causing them injuries with Sura. For the
offence punishable under Section 302 of IPC the appellant was
sentenced to undergo imprisonment for life and to pay fine of
Rs.1000/-, in default to undergo R.I. for 3 months. For the
offence punishable under Section 324 of IPC, the appellant was
sentenced to undergo R.I. For 3 months and to pay fine of
Rs.500/-, in default to undergo S.I. for 3 months. For the offence
punishable under Section 452 of IPC, the appellant was
sentenced to undergo R.I for 6 months and to pay fine of
Rs.500/-, in default to undergo S.I. for 3 months. The learned
Sessions Judge directed that all sentences of imprisonment shall
run concurrently.
2 The prosecution case can briefly be stated as under:
(i) Deceased in the present case is Indubai. She was the
mother of PW-1 Anil and mother-in-law of PW-5 Anjana. The
appellant was distantly related to the family of Indubai. The land
of Indubai and the appellant was situated adjacent to each
other. The appellant was residing along with his father Bapurao,
his wife, his elder brother Chandu and wife of Chandu. There
was a common well between the family of Indubai and Bapurao.
There was quarrel on account of well water between Indubai and
the appellant. PW-7 Pradeep Kolekar was also residing at
Yelagewasti. The land of the father of the appellant was situated
adjacent to the land of Pradeep. The cattle of Pradeep had
entered into the field of the appellant. On account of this,
exchange of words took place between Pradeep and the
appellant. PW-8 Suman Kolekar was the mother of Pradeep. She
was residing with Pradeep at Yelagewasti.
(ii) It is the prosecution case that on 24.11.2004 at about
9.00 a.m. Anjana and her mother-in-law deceased Indubai were
taking their cattle for grazing. At that time the appellant came in
front of Indubai. He started assaulting Indubai with a knife. He
assaulted Indubai on the neck and chest. PW-5 Anjana
intervened. Thereupon the appellant also assaulted her on the
hand and chest with a knife. Meanwhile Indubai fell down on the
ground. Thereafter Anjana also fell down. The appellant
assaulted Indubai on her stomach, chest and back with a knife.
The appellant then ran away towards the house of Mahadeo
Kolekar. PW-7 Pradeep was the son of Mahadeo Kolekar. He was
residing at Yelagewadi. At about 9.15 a.m. PW-7 Pradeep was in
his house. His mother PW-8 Suman was cooking food. At that
time the appellant came running into the house of Pradeep with
knife in his hand. The appellant then assaulted Pradeep with the
knife on his stomach. PW-8 Suman intervened. Thereupon the
appellant also assaulted Suman on her chest and on the hands.
The appellant then ran away from the spot. While Pradeep and
Suman were going to the hospital, on the way they saw Indubai
lying on the ground with injuries on her person. They saw that
Anjana was also lying in injured state near Indubai. Meanwhile,
PW-1 Anil who was the son of Indubai was informed by his
cousin brother that his mother Indubai was assaulted by the
appellant with a knife. Anil was also informed that his sister-inlaw
Anjana was also assaulted by the appellant. On receiving
the said information, PW-1 Anil went to his wadi on a
motorcycle. He saw his mother Indubai and sister-in-law Anjana
were lying in the field in injured condition. Anil then went to
Sangola Police Station and lodged FIR (Exhibit-5). Thereafter
investigation commenced. The appellant was arrested. After
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completion of investigation, chargesheet came to be filed.
3 Charge came to be framed against the appellant under
Section 302 of the Indian Penal Code for causing murder of
Indubai. Charge was also framed under Section 307 for
assaulting PW-5 Anjana, PW-7 Pradeep and PW-8 Suman with a
knife. Charge was also framed under Section 452 of IPC as the
appellant had entered into the house of the witnesses in order
to commit offence. After going through the evidence adduced in
this case, the learned Sessions Judge convicted and sentenced
the appellant as stated in para-1 above. Hence, this appeal.
4 We have heard the learned Counsel for the appellant
and the learned APP for the State. We have carefully considered
their submissions, facts and circumstances of the case,
judgment passed by the learned Sessions Judge and the
evidence in this case. After carefully considering the matter, for
the below mentioned reasons, we are of the opinion that the
appellant assaulted Indubai with knife and caused her death and
in the course of the said incident caused injuries to Anjana with
knife. We are also of the opinion that the applicant entered into
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the house of PW-7 Pradeep and PW-8 Suman and caused them
injuries with knife.
5 The incident has occurred in two parts. In the first part
of the incident, the appellant had assaulted Indubai and PW-5
Anjana. In the second part of the incident, the appellant has
assaulted PW-7 Pradeep and PW-8 Suman after entering into
their house. As far as the first part of the incident is concerned,
PW-5 Anjana has deposed about it. Anjana has stated that she
was residing with her husband, brother-in-law and in-laws at
Yelgewadi. Deceased Indubai was her mother-in-law. The father
of the appellant was the distant father-in-law of Anjana. The
appellant was residing with his wife, his father, his brother
Chandu and wife of Chandu near the house of Anjana. The land
of the appellant and Indubai was situated adjacent to each
other. There was a common well between the family of Indubai
and family of the appellant. Anjana has stated that on the day of
incident, at about 9. a.m. she and her mother-in-law Indubai
were taking their cattle for grazing. At that time the appellant
came in front of her mother-in-law Indubai. The appellant
started assaulting Indubai with a knife. Anjana intervened.
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Thereupon the appellant also assaulted her on the
hand and chest with a knife. Indubai and Anjana fell down. The
appellant then assaulted Indubai on the stomach, chest and
back with knife. The appellant then ran away. Indubai died on
the spot. Many persons gathered on the spot. Then PW-7
Pradeep and his mother PW-8 Suman came on the spot on their
way to the hospital. They told Anjana that they were assaulted
by the appellant with knife. Both Pradeep and Suman had
injuries on their person. Anjana also went to the hospital. Anil
i.e. brother-in-law of Anjana lodged FIR.
6 The second part of the incident has been deposed by
PW-7 Pradeep and PW-8 Suman. Both of them are injured
witnesses. Pradeep has stated that he knew the appellant. The
land of the father of the appellant was adjacent to his land.
There was exchange of words between the appellant and him on
account of trespass of his cattle in the field of the appellant. He
has stated that on the day of incident at about 9.15 a.m. he was
taking meal in his kitchen. His mother Suman ((PW-8) was
cooking food. At that time the appellant came running into his
house with a knife in his hand. On seeing the appellant, Pradeep
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got up. The appellant assaulted Pradeep on his stomach. At that
time Suman (PW-8) mother of Pradeep intervened. The appellant
then assaulted Suman on her chest and hand. The appellant
then ran away from the spot. While going to the hospital, he
(Pradeep) saw Indubai and Anjana lying in injured condition in
the field. He came to know that the appellant had assaulted
Indubai and Anjana and thereafter the appellant had come to his
house. Pradeep has stated that he and his mother Suman were
admitted in the hospital.
7 PW-8 Suman is also an eye-witness to the second part
of the incident. Suman has stated that the land of Bapurao
Yelage i.e. father of the appellant was adjacent to her land.
There was quarrel between the appellant and her son Pradeep
on account of trespass of their cattle in the field of the appellant
due to which the appellant had a grudge against Pradeep.
Suman has stated that the incident took place at about 9.15
a.m. At that time she was cooking in the kitchen. Pradeep was
taking meal in front of her. Her other son and husband were
working in the field. At that time the appellant came running
into their house with a knife in his hand. Pradeep stood up on
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seeing the appellant. The appellant then assaulted her son
Pradeep on the stomach. Suman intervened. Thereupon the
appellant also assaulted Suman with knife on her hand and
stomach due to which she sustained bleeding injuries. Her son
Pradeep also sustained bleeding injuries. They then proceeded
towards hospital. While they were going to the hospital on the
way they saw Indubai and Anjana lying in injured condition. They
came to know that the appellant had assaulted Indubai and
Anjana. Suman has stated that she was admitted in the hospital.
8 It is the prosecution case that the appellant assaulted
Indubai with a knife and caused her death. Eight incised wounds
were found on the body of Indubai. According to PW-12 Dr.
Bansode who conducted postmortem on the dead body of
Indubai, the cause of death of Indubai was acute cardio
respiratory failure and due to hemorrhagic shock due to injury to
heart and kidney. Dr. Bansode has opined that all the injuries
noticed on the dead body of Indubai was possible by a knife,
Article-5.
9 PW-12 Dr. Bansode also examined PW-7 Pradeep. On
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examination he found Pradeep has sustained incised wounds on
right thigh and right palm. PW-12 Dr. Bansode also examined
Suman. He found incised wounds on the pectoral region and
right palm. PW-5 Anjana was also examined by Dr. Bansode. On
examination, incised wounds were found on her right manmary
region and CLW was found on the left palm. Thus, the medical
evidence is also totally consistent with the prosecution case.
10 No doubt through the evidence of PW-5 Anjana, the
prosecution has established that the appellant assaulted her as
well as her mother-in-law Indubai with a knife which caused the
death of Indubai. Through the evidence of PW-7 Pradeep and
PW-8 Suman the prosecution has proved that the appellant
assaulted PW-7 Pradeep and PW-8 Suman with a knife due to
which injuries were sustained by Pradeep and Suman. However,
the learned Counsel for the appellant submitted that the
appellant was suffering from mental illness and at the time of
incident the appellant during a bout of mental disturbance had
murdered Indubai and caused injuries to PW-5 Anjana, PW-7
Pradeep and PW-8 Suman. He submitted that in such case the
appellant is entitled to the benefit of Exception in Section 84 of
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IPC. In order to support his contention that the appellant was
suffering from mental insanity, he has drawn our attention to
the evidence of Investigating Officer PW-14 API Shelke., DW-1
Dr. Wadegaonkar, DW-2 Dr. Lokhande and DW-3 Sakhubai who is
the mother of the appellant.
11 Learned Counsel for the appellant drew our attention
to the evidence of PW-14 API Shelke who is the Investigating
Officer in the present case. API Shelke has stated that on
3.12.2004 the letter was received from the Civil Hospital in
respect of the appellant for referring the appellant to Yerwada
for treatment as the appellant was examined by a psychiatrist.
As per letter which was received on 3.12.2004, the appellant
was admitted in Yerwada mental hospital. The appellant was
arrested on 24.11.2004 i.e. on the day of incident itself. PCR of
the appellant was from 24.11.2004 to 29.11.2004. On
28.11.2004 the appellant inflicted injuries on his person. Hence,
the appellant was taken to the Civil Hospital at Solapur for
treatment. The appellant had inflicted injuries with iron wire on
his private part. This is supported by the evidence of DW-2 Dr.
Lokhande who has stated that on 28.11.2004 the appellant was
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brought by the police to the hospital at Sangola at about 4.45
p.m. with history of self-inflicted injuries on his private part. On
examination, DW-2 Dr. Lokhande found injuries i.e. C.L.W.
vertical on left side of scrotum 5 x 2 cm caused by sharp
weapon. Single testis was protruding from the wound. Right side
testis was not found in place. Police brought that testis with
them. The patient was semi conscious and was in shock. Dr.
Lokhande stated that he referred the patient to Civil Hospital
Solapur.
12 Not only the evidence of PW-14 API Shelke shows that
prior to 3.12.2004 the appellant was examined by the
Psychiatrist and a letter was issued to the Investigating Agency
which was received by them on 3.12.2004 but pursuant to the
said letter the appellant was admitted in Yerwada Mental
Hospital. The evidence of DW-1 Dr. Wadegaonkar shows that on
26.7.2004 the appellant had come to him for taking treatment.
At that time Dr. Wadegaonkar found that the appellant had
came with complaint of irrelevant talking, reduced sleep, irratic
appetite, laughing and crying spell, irritability, suspiciousness
and feeling of fear since last 4-5 days. On examination Dr.
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Wadegaonkar found that the appellant was showing
restlessness, fearful mood and the appellant was speaking
irrelevantly and he had persecutory idea. Dr. Wadegaonkar
further found that the memory and intelligence of the appellant
was impaired. Dr. Wadegaonkar diagnosed the appellant as
suffering from “Bipolar Affected Disorder”. The appellant was
admitted on 26.7.2004 and was in the hospital till 4.8.2004. He
was treated with drugs and electro convulsive therapy. The
appellant was discharged as improvement was found in his
condition. The appellant was then called for follow up on
9.8.2004, but appellant came on 16.8.2004. Dr. Wadegaonkar
gave medicines for 10 days. When appellant came on
25.8.2004, he was given 10 days medicines. Thereafter the
appellant came on 14.9.2004 and he was given medicines for
one month. Thereafter the appellant came on 18.10.2004. The
appellant was off medicines for four days. Dr. Wadegaonkar
found that the appellant was suffering from persecutory idea on
18.10.2004. Thereafter the appellant came on 18.11.2004. On
that day Dr. Wadegaonkar found that the appellant was feeling
sad that is he was depressed and having excessive worry about
the future. Dr. Wadegaonkar then gave one month's medicine to
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the appellant. Thereafter the appellant did not come to
Dr.Wadegaonkar. Thus it is seen that on 18.11.2004 the
appellant was under depression as well as having excessive
worry about the future which shows that the appellant was not
in a proper mental state of mind even on 18.11.2004 which is
further seen from the fact that on 18.11.2004 Dr. Wadegaonkar
gave one month's medicine to the appellant. Thus, on the day of
incident i.e. 24.11.2004 the appellant was under medication for
his mental illness. Dr. Wadegaonkar has stated that the patient
did not know the effects of things done by him. This shows that
the appellant was not capable of knowing the nature and
consequences of his act or that it was wrong and contrary to
law.
13 The evidence of DW-3 Sakhubai, who is the mother of
the appellant further supports the defence of the appellant that
the appellant was suffering from mental illness. DW-3 Sakhubai
has stated that the appellant was a lunatic since 2 years and 5
months before the incident. The appellant was taking treatment
for his mental illness at Miraj. The appellant was admitted there
for 10 days. The evidence of DW-1 Dr. Wadegaonkar shows that
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he was the doctor from Miraj from whom the appellant was
taking treatment. Sakhubai has stated that on the day of the
incident, at the time of sun rise, the appellant was tearing his
clothes. Sakhubai snatched the clothes from the hands of the
appellant and abused him. Then Sakhubai went to cook food.
Thereafter the appellant came there with two stones in his hand
and struck her on her back. Sakhubai then assaulted the
appellant with stick. Thereafter the appellant left the house.
14 Looking to the evidence of DW-1, DW-2, DW-3 and PW-
14 API Shelke which shows that the appellant was suffering from
mental illness, only aspect to be considered is the defence of
insanity raised by the appellant. However, the learned APP
urged that the appellant failed to prove that the appellant was
of unsound mind at the time of commission of offence. He
submitted that the fact that the appellant was suffering from
mental illness before or after the commission of the offence is of
no consequence but it has to be proved that the appellant was
suffering from mental illness at the time of the incident. He
further submitted that the appellant has failed to prove that at
the relevant time he was suffering from mental illness.
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15 The burden to prove that an accused is of unsound
mind and as a result thereof he is incapable of knowing the
nature and consequences of his act is on the accused. Section
84 of IPC is one of the provisions in Chapter IV of IPC which deals
with “General Exceptions”. This 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 and consequences of the act or that he is doing what is
either wrong or contrary to law. Burden of proving the existence
of circumstances within the purview of Section 84 lies upon the
accused under Section 105 of the Indian Evidence Act. Under
the said Section the Court shall presume the absence of such
circumstance. Illustration (a) to Section 105 is as follows:
“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.”
16 The question whether the appellant has proved the
existence of circumstances bringing the case within the
purview of Section 84 will have to be examined from the totality
of the circumstances. The unsoundness of mind as a result
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whereof the accused is incapable of knowing the nature and
consequences of his act is a state of mind of a person which
ordinarily can be inferred from the circumstances.
17 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 of IPC. In Dahyabhai Chhaganbhai
Thakkar Vs. State of Gujrat reported in AIR 1964 SC
1563 = 1964 (2) Cri. L.J. 472, the Supreme Court has held
that even if the accused was not able to establish conclusively
that he was not of sound mind at the time he committed the
offence, but the evidence placed before the Court raises a
reasonable doubt in the mind of the Court as regards one or
more ingredients of the offence, including mens rea of the
accused then 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. The burden of
proof on the accused to prove insanity is no higher than that
which rests upon a party to civil proceedings which in other
words means preponderance of probability.
18 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
appellant 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 under
Section 84 of the Indian Penal Code. The accused may rebut this
presumption by placing before the court all the relevant
evidence-oral, documentary or circumstantial, but the burden of
proof upon the accused is no higher than that which rests upon
a party to civil proceedings. 3) Even if the accused is not able to
establish conclusively that he was not of sound mind 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. Similar
view was taken by the Supreme Court in the case of Shrikant
Anandrao Bhosale Vs. State of Maharashtra reported in 2002
Cri. L.J. 4536.
19 The circumstances that stand proved in this case in
relation to the defence of the appellant of lunacy are as under:
(I) since at least 4 months prior to the incident the
appellant had a history of psychiatric illness;
(ii) soon after the incident the appellant was admitted
in the Government mental hospital for his mental
illness;
(iii) his mental illness was to such an extent that he
was given electric shocks in addition to other
treatment.
20 In the present case, however, the above mentioned
factors are not the only factors but it is totality of the
circumstances seen in the light of the evidence on record which
proves that the appellant was suffering from unsoundness of
mind. The appellant used to speak irrelevant things. He also
had fear in his mind and idea that he was being persecuted. His
memory and intelligence was impaired. He was also suffering
from depression and excessive worry about the future. The
evidence of DW-1 shows that prior to the incident the appellant
had been given medicines for one month in relation to his
unsoundness of mind. The unsoundness of mind before and
after the incident is a relevant fact. From the circumstances of
this case an inference can certainly be drawn that the appellant
was under a delusion at the relevant time and thus at the time
of the incident he was under an attack of mental illness.
21 Having regard to the nature of burden on the appellant
we are of the view that the appellant has proved existence of
circumstances as required by Section 105 of the Indian
Evidence Act so as to get the benefit of Section 84 of IPC. There
is reasonable doubt that at the time of commission of crime the
appellant was incapable of knowing the nature and
consequences of the act and/or that the act was wrong and
contrary to law by reason of unsoundness of mind and thus the
appellant is entitled to get the benefit of Section 84 of IPC. In
this view of the matter, the conviction and sentence of the
appellant cannot be sustained.
22 For the aforesaid reasons, we set aside the impugned
judgment and order dated 30th November 2006 passed by the
learned Sessions Judge, Pandharpur in S.C. No.18 of 2005 and
allow the appeal. The appellant is acquitted of the offences
punishable under Section 302 as well as Sections 324 and 452
of IPC. The appellant shall be set at liberty, if not required in
any other case.
(A.S. GADKARI, J.) (SMT. V.K. TAHILRAMANI, J.)
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