High Court
Legal Reasoning
Cri. Appeal No.345.2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO.345 OF 2019 Pradip s/o. Babasaheb Rashinkar,Age : 29 years, Occ. Labourer,r/o. Naigaon, Tq. Shrirampur,Dist. Ahmednagar..AppellantVs.The State of Maharashtra,Through Police Inspector, Shrirampur Taluka Police Station,Tq. Shrirampur, Dist. Ahmednagar..Respondent----Mr.Yogesh R. Shinde, Advocate h/f. Mr.R.R.Karpe, Advocate for appellantMs.U.S.Bhosale, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE :JANUARY 18, 2024 JUDGMENT (PER R.G.AVACHAT) :-The appellant has been convicted for the offence ofmurder, punishable under Section 302 of Indian Penal Code, videjudgment and order dated 14.03.2019, passed by learned Addl.Sessions Judge, Shrirampur, Dist. Ahmednagar, in Sessions Case No.35of 2016, and therefore, sentenced to suffer imprisonment for life and topay a fine of Rs.5,000/-, in default, to suffer simple imprisonment forsix months. 2Cri. Appeal No.345.20192.The facts giving rise to this appeal are as follows:- The appellant had married Varsha (deceased) about 7years before the incident. The couple was blessed with two children.Both appellant and deceased along with their children would resideseparately from the appellant’s father and his other family members.The appellant assaulted the deceased on her neck with an axe by08.00 p.m. on 16.06.2016 in his house. He fled leaving behind theaxe at the scene of the offence. He, first, met with his uncle – Arun(PW 3) and related him to have killed Varsha. PW 3 – Arun,therefore, rushed to the house of the appellant to find deceased –Varsha lying in the pool of blood. The other relations had alreadygathered. The relations of the deceased from her parental side wereinformed. Her brother (PW 2 - Santosh) along with his mother cameto the house of the appellant. PW 3 – Arun lodged the FIR. Thecrime, vide C.R. No.I-49 of 2016, was registered and investigated aswell. The scene of offence panchnama (Exh.36) was drawn. Inquest(Exh.16) was conducted. Mortal remains of the deceased weresubjected to autopsy. The appellant was arrested. Statements of thepersons acquainted with the facts and circumstances of the casewere recorded. On completion of the investigation, charge sheetwas laid before the court of Judicial Magistrate, First Class, 3Cri. Appeal No.345.2019Shrirampur. Learned Judicial Magistrate, First Class committed thecase to the court of learned Addl. Sessions Judge, Shrirampur, fortrial in accordance with law (trial court). 3.The trial court framed Charge (Exh.9). The appellantpleaded not guilty. His defence appears to be of not having beenkeeping psychologically well. As such, the defence under Section 84of Indian Penal Code was sought to be made out. The prosecutionexamined thirteen witnesses and produced in evidence certaindocuments. The appellant’s father testified on oath as defencewitness besides the medical practitioner (DW 2) to make out thecase of the appellant to have not been sane, while the alleged crimetook place. 4.On appreciation of the evidence in the case, the trialcourt convicted the appellant and consequently, sentenced, asstated above.5.Learned counsel for the appellant would submit that thecase is based on circumstantial evidence. There is nothing toindicate that the appellant was at home, while the offence wascommitted. Learned counsel then took us through the cross- 4Cri. Appeal No.345.2019examination of certain witnesses and the defence evidence, to makeout a defence of insanity. He, ultimately, urged for allowing theappeal.6.Learned APP would, on the other hand, submit thatadmittedly, the appellant was residing along with his wife and twominor children. No other person was residing with them. Thedeceased died at the matrimonial home. It is, therefore, for theappellant to explain the circumstances, in which she died. The onlyinference that the appellant was author of the crime, could be drawn.The appellant made extra-judicial confession to none other than hisreal uncle. As regards the defence of insanity in question, learnedAPP would submit that the trial court found the appellant being sane.The evidence of DW 2 (psychiatrist) has rightly been discarded. She,therefore, urged for dismissal of the appeal.7.Considered the submissions advanced. The post mortemreport (Exh.47) indicates that the deceased died due to chop-woundsover her neck. PW 11 – Sanjay opined that it was a homicidal death.The fact that the deceased met with such a death is undisputed. Thequestion is, whether the appellant is author of the homicidal death ofhis wife. 5Cri. Appeal No.345.20198.It is in the evidence of PW 3 – Arun that the appellantalong with his wife – Varsha (deceased) would reside together alongwith their two children. DW 1 – Babasaheb, father of the appellant,testified on the same lines. The appellant, in the examination underSection 313 of the Code of Criminal Procedure, admitted the fact ofhaving been residing with his wife and two children. PW 1 – Vitthal isa witness to the inquest panchnama (Exh.16). The scene of offencepanchnama (Exh.36) indicates that it was a room admeasuring 10 ft.x 12 ft. Blood was spread on the floor. An axe stained with bloodwas also found on the spot. It was the house of appellant. As such,the fact that the deceased met with homicidal death at hermatrimonial home shared by her husband and their two children,goes a long way to infer that it was the appellant and none other, tohave killed his wife. The same inference is required to be drawnsince the appellant did not offer any explanation as to where he wason the fateful night. 9.The Apex Court in case of Trimukh Maroti Kirkan Vs.State of Maharashtra, (2006) 10 SCC 681 in paragraph 22observed thus :-22.Where an accused is alleged to have committed themurder of his wife and the prosecution succeeds in leading 6Cri. Appeal No.345.2019evidence to show that shortly before the commission of crimethey were seen together or the offence takes placed in thedwelling home where the husband also normally resided, ithas been consistently held that if the accused does not offerany explanation how the wife received injuries or offers anexplanation which is found to be false, it is a strongcircumstance which indicates that he is responsible forcommission of the crime.”10.The question is, whether the act of the appellantcommitting murder of his wife, was a result of his unsoundness ofmind. PW 2 – Santosh, brother of deceased, testified that his sister(deceased) had a happy married life. Whenever he visited her house,she made no complaint against the appellant. According to him, inthose days, the appellant was not keeping well. He (appellant) wasmentally not sound. The appellant was taking treatment of Dr.Unde,Psychiatrist.11.PW 3 – Arun (informant) also admitted in his cross-examination, that at the relevant time, the appellant was apsychopath. He was in the know that the appellant was takingtreatment of Dr.Unde. PW 4 – Gorakh’s testimony reinforces theevidence of PW 2 - Santosh and PW 3 – Arun, as regards theappellant’s state of mind and that he was taking treatment thereforof Dr.Unde. PW 5 – Nandkishor also stated in his examination-in- 7Cri. Appeal No.345.2019chief that the appellant was of unsound mind. He was confrontedwith his statement under Section 164 of the Code of CriminalProcedure, wherein, he stated the appellant to have been takingtreatment of Dr.Unde.12.DW 1 – Babasaheb, father of the appellant, testified thatsince 2015, the appellant was not keeping well, psychologically. Theappellant was taking treatment of Psychiatrist, Dr.Unde. It is furtherin his evidence that the appellant was not taking medicines on time.13.DW 2 – Dr.Sunil Unde's testimony indicates that he wasM.D. in psychiatrist. He knew the appellant. According to him, theappellant was suffering from paranoid schizophrenia. He stated asunder :-“……………………………….when patient symptomaticthat time he experiences unrealistic things. They arecalled as delusions. In such type of patients, there aredifferent types of delusions. Like delusion of percussion.Percussion means somebody is planning to harm him or isagainst him. Delusion of self reference means peoplearound are talking about. Such patients to get auditoryhallucinatia. In such hallucination they might becommenting, commanding or commentary. In suchpatients they are irritable, their sleep is disturbed, theiractivity is increased. They do not have touch of reality.When patient is symptomatic then they are not in soundstate of mind or they do not have capacity to understandthe things. I have examined the patient on 31.12.2015 atthat time he was off medication, so his symptomatic 8Cri. Appeal No.345.2019increased. I have prescribed anti psychiatric medicines for15 days. I have called him for follow up on 15.01.2016,but he came on 16th February, 2016. Thereafter I againseen him at last time on 28th May, 2016 that time also hewas not taking medicines and his symptoms wereincreased. So I have prescribed medicines for one monthand called for follow up on 28th June, 2016. The papersnow shown to me issued by me. Those are at Exh.71 to 73respectively.”DW 2 - Dr.Sunil produced in evidence the medical papers of theappellant. We have also scrutinised all the case papers to find thatnot less than four times, learned counsel appearing for the appellantbefore the trial court, had moved applications requesting to extendthe appellant requisite treatment for his mental illness. The trialcourt had allowed those applications. What kind of treatment wasextended to the appellant is, however, not forthcoming. 14.The appellant has been lodged in the Central Prison,Yerwada, Pune. He was produced online. On inquiry with the Jailer, itwas informed that the appellant is being extended treatment for hismental ill-health.15.Based on all these facts, we find that the appellant hadnot been keeping sound mental state since 2015 and even, till date.The deceased and the appellant were leading happy married life. Theprosecution has not brought on record any motive. We have, 9Cri. Appeal No.345.2019therefore, every reason to observe the appellant to have killed hiswife as a result he being not sane.16.The Apex Court in the case of Dahyabhai ChhaganbhaiThakkar Vs. State of Gujarat, AIR 1964 SC 1563 observedthus :-………..The doctrine of burden of proof in the context ofthe plea of insanity may be stated in the followingpropositions:(1) The prosecution must prove beyond reasonable doubtthat the accused had committed the offence with therequisite, mens rea; and the burden of proving that alwaysrests on the prosecution from the beginning to the end ofthe trial. (2) There is a rebuttable presumption that theaccused was not insane, when he committed the crime, inthe sense laid down by Section 84 of the Indian PenalCode: the accused may rebut it by placing before thecourt all the relevant evidence - oral, documentary orcircumstantial, but the burden of proof upon him is nohigher than that rests upon a party to civil proceedings.(3) Even if the accused was not able to establishconclusively that he was insane at the time he committedthe offence, the evidence placed before the court by theaccused or by the prosecution may raise a reasonabledoubt in the mind of the court as regards one or more ofthe ingredients of the offence, including mens rea of theaccused and in that case the court would be entitled toacquit the accused on the ground that the general burdenof proof resting on the prosecution was not discharged.17.We, thus, find the appellant to have made out thedefence of insanity under Section 84 of Indian Penal Code and he is,therefore, entitled for acquittal. 10Cri. Appeal No.345.201918.Chapter XXV of Cr.P.C. speaks of provisions of accusedpersons of unsound mind. Section 335 falling under said Chapterreads thus:-335. Person acquitted on such ground to be detained insafe custody:(1) Whenever the finding states that the accused personcommitted the act alleged, the magistrate or Court beforewhom or which the trial has been held shall, if such actwould, but for the incapacity found have constituted anoffence,—(a) order such person to be detainedin safe custody in such place andmanner as the Magistrate or Courtthinks fit; or(b) order such person to be deliveredto any relative or friend of suchperson.(2) No order for the detention of the accused in a lunaticasylum shall be made under clause (a) of sub-section (1)otherwise than in accordance with such rules as the StateGovernment may have made under the Indian Lunacy Act,1912 (4 of 1912).(3) No order for the delivery of the accused to a relative orfriend shall be made under clause (b) of sub-section (1)except upon the application of such relative or friend andon his giving security to the satisfaction of the Magistrateor Court that the person delivered shall-(a) be properly taken care of andprevented from doing injury tohimself or to any other person;(b) be produced for the inspection ofsuch officer, and at such times andplaces, as the State Government maydirect.(4) The Magistrate or Court shall report to the StateGovernment the action taken under sub-section (1).
Decision
11Cri. Appeal No.345.201919.Since the appellant is still under treatment for his mentalill-health and his father has not yet made any application for hiscustody, the jail authorities needs to be directed to extend medicaltreatment to the appellant in Government Mental HealthEstablishment.20.In the result, the appeal succeeds. Hence, the followingorder:-(i)The appeal is allowed.(ii)The judgment and order dated 14.03.2019, passed bylearned Addl. Sessions Judge, Shrirampur, Dist,Ahmednagar, in Sessions Case No.35 of 2016, convictingand sentencing the appellant for the offence punishableunder Section 302 of Indian Penal Code, is set aside.(iii)The appellant is acquitted of the offence punishableunder Section 302 of Indian Penal Code.(iv)Fine amount paid by the appellant, if any, be refundedto him.(v)Since the appellant is still under treatment for his mentalill-health and his father has not yet made any applicationfor his custody, we direct the Superintendent, CentralPrison, Yerwada, Pune, wherein the appellant has beenlodged, to keep the appellant in Government MentalHealth Establishment, for necessary medical treatment. 12Cri. Appeal No.345.2019(vi)The father of the appellant or any of his close relationsmay make an application under Section 335(3) of theCode of Criminal Procedure, either to the trial court or tothis court. Needless to mention, if such an application ismade, the same would be decided in terms of Section335 of the Cr.P.C. and the relevant provisions of theMental Healthcare Act, 2017.(vii)Learned Registrar (Judicial) of this Court to communicatethis order to the Superintendent, Central Prison, Yerwada,Pune, forthwith.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP