Criminal Appeal No. 131 of 2008 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK. CRIMINAL APPEAL No.131 of 2008 Challenging the judgment and order dated 14.01.2008 of the Additional Sessions Judge, Deogarh in S.T. Case No. 80 of 2006 . -------------- Shyama Dhibar …… Appellant -Versus- State of Odisha …… Respondent ---------------------------------------------------------------------------------------- For Appellant : Mr. H.B. Dash, Advocate For Respondent : Ms. S. Pattnaik, Additional Government Advocate ----------------------------------------------------------------------------------------------------------------------------- CORAM : HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 16th May, 2023 S. Talapatra, J. This is an appeal by the convict (hereinafter referred to as the ‘Appellant’) under Section 374(2) of the Cr.P.C. from the judgment and order of conviction and sentence dated 14.01.2008 delivered in S.T. Case No.80 of 2006 (arising out of C.T. Case No.264 of 2006 in the 2 Court of the SDJM, Deogarh and Barkote P.S. Case No.5 of 2006) by the Additional Sessions Judge, Deogarh. 2. By the said judgment, the Appellant has been convicted under Section 307/302 of the IPC. While returning the finding of the conviction it transpired from the chemical examination report (Ext.13) of wearing apparels of the deceased, Raja @ Rajesh Dhibar (the Appellant’s son) and the vegetable chopper (Paniki) that blood stains were human origin. It has been further observed by the trial judge that on hearing the shout “save me save me”, P.W.7 found that the room was bolted from inside and from outside, he recognised the sound of assault inside the room. As per the evidence of P.W.5, the wife of the Appellant slept with her children and the Appellant bolted the room from inside. P.W.1 an independent witness has stated in his evidence that when the door was broken, the Appellant came out of the room. This evidence of P.W-1 regarding presence of the Appellant in the same room where the dead body of Raja @ Rajesh Dhibar was found lying has been corroborated by P.W.5, the wife of the Appellant. Based on the said finding particularly on the basis of the evidence of P.W.5, the Appellant was convicted under Sections 307/302 of the IPC. 3 3. Consequent there upon this conviction, the Appellant has been sentenced to suffer rigorous imprisonment for life under Section 302 of the IPC for committing murder of Raja @ Rajesh his own son and life imprisonment for committing offence under Section 307 of the IPC for attempting to commit murder of his wife Bimala Dhibar (P.W.5). Fine which is mandatorily required to be passed has not been awarded by the trial judge. Those findings are under challenge in this appeal. 4.
Legal Reasoning
Thereafter, upon further consideration, this Court defined the doctrine of burden of proof in the context of the plea of insanity 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 appellant was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the appellant 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 appellant 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 appellant 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 appellant and in that case the court would be entitled to acquit the appellant on the ground that the general burden of proof resting on the prosecution was not discharged.” It was the duty of the prosecution to prove that the Appellant was not suffering from unsoundness of mind at the time of the committing the offence in as much as when an accused resorts to the plea of unsoundness of mind, he is not expected to prove the exception. 15 In that case the court would acquit the Appellant on the ground that the general burden of proof, resting on the prosecution, was not discharged. 7. In Siddhapal Kamala Yadav vs. State of Maharashtra: 2009 (1) SCC 124 having referred to M. Naughton’s case (supra) it has been observed that, a lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act, but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act, but merely a cessation of the violent symptoms of the disorder is not sufficient. It has been further observed in the case of Siddhapal Kamala Yadav (supra) that, Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There, is no definition of "unsoundness of mind" in the IPC. Courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto 16 exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on an accused to prove his insanity, which arises by virtue of Section 105 of the Indian Evidence Act, 1972 (in short the `Evidence Act') and is not so onerous as that which rests upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. (See Dahyabhai v. State of Gujarat: AIR 1964 SC 1563). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarised them as follows: “Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment ; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detections whether, after his arrest, he offered false excuses and made false statements. All facts of this sort 17 are material as bearing on the test, which Bramwall, submitted to a jury in such a case: Would the prisoner have committed the act if there had been a policeman at his elbow ? It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is, what Mayne calls, "inferential insanity". Ms. Patnaik, learned Additional Government Advocate relied on a full Bench decision of the Allahabad High Court in Rishi Kesh Singh and others vs. State of UP: AIR 1970 All-51 (FB), where it has been held by the Allahabad High Court that, the prosecution must prove the guilt of the accused, i.e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of Section 80 of the Indian Penal Code, 1860, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to Section 80 of the Indian Penal Code,1860, but Viscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is 18 one of insanity and in a case where there is a statutory exception to the general rules of burden of proof. Such an exception is found in Section 105 of the Indian Evidence Act. Section 105 of the Indian Evidence Act provides the burden of proving the case when the accused claims that he is within the exceptions. It provides that, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. The law as stated in Dahyabhai Chhaganbhai Thakker (supra) and Bhikari v. The State of Uttar Pradesh: AIR 1966 SC 1 has been approvingly restated in Rishi Kesh Singh (supra), we reproduce hereunder the relevant passages for purpose of incisive reference: “47.Dahyabhai Chhaganbhai Thakker vs. State of Gujarat and Bhikari v. The State of Uttar Pradesh are cases where the benefit of the General Exception detailed in Section 84, I.P.C. was claimed: plea of insanity was invoked by the accused to show that he was incapable of understanding the nature of the act done by him and hence was entitled to acquittal. In Dahyabhai Chhaganbhai Thakker vs. State of Gujarat the law was laid down as below: "It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond 19 reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code, 1860. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code, 1860 provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man." If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity." "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: 20 (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, 1860: 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." 48. At another place after summarizing the law laid down in K.M. Nanavati v. State of Maharashtra, it was observed:- "A Division Bench of the Nagpur High Court in Ramhitram v. State of Madhya Pradesh, has struck a different note inasmuch as it held that the benefit of doubt which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect the accused with the occurrence and that it had nothing to do, with the mental state of the accused. With, great respect, we cannot agree with this view. If this view were correct, the Court would be helpless and would be legally bound to convict an accused even though, there was genuine and reasonable doubt in its mind that the accused had not the requisite intention when he did the act for which he was charged. This view is also inconsistent with that expressed in Nanavati's case." 49. In Bhikari v. The State of Uttar Pradesh, after quoting the passage from Dahyabhai Chhaganbhai Thakker vs. State of Gujarat, their Lordships of the Supreme Court observed as below:- "This passage does not say anything different from what we have said earlier. Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by 21 the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to acquittal. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act." 50. In Harbhajan Singh v. State of Punjab only one point was considered in detail namely, the nature and the extent of evidence which would discharge the onus of proof placed on an accused person claiming the benefit of an Exception. Observations on the other point are in consonance with the earlier decision. The relevant observations made on the point are as below:- "There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused: but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the in proving a preponderance of accused person succeeds probability. As seen the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt." "It will be recalled that it was with a view to emphasising the fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution, that Viscount Sankey in Woolmington v. Director of Public Prosecutions, observed that "no matter which the charge or where the trial, the principle that the prosecution must prove the guilt of the Prisoner is part of the common law of 22 England and no attempt to whittle it down can be entertained." This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person, he is not required to justify his plea: but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case." 8. In a nutshell, the prosecution cannot be relieved of their responsibility to prove the guilt, if the trial commenced without any plea of insanity etc. Therefore, presumption under Section 105 of the Indian Evidence Act needs certain foundational facts. No attempt to whittle it down can be entertained and the standard is of preponderance of the probability. It has been further held in Rishi Kesh Singh (supra) as regards a state of mind or mens rea on the part of the accused is to be proved by the prosecution. It is usually gathered by circumstances raising a presumption about the intention. The defence may give some evidence pointing in another direction. In Rishi Kesh Singh (supra) it has been clearly observed that, the doctrine of mens rea is abstruse. The principle is stated in the maxim: "actus non facit reum, nisi mens sit rea" or "an act does not make one guilty unless the mind is also guilty". It has been held that in Srinivas v. Emperor: 1947 (XLIX) Bom.L.R.688, the Privy Council adopted the rule, with regard to an alleged violation of Rule 81 (2) of Defence of India Rules, that "unless the statute, either 23 clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind". In other words, it is presumed to exist within or may be impliedly annexed to even a statutory definition of an offence unless the definition is in terms which necessarily exclude it. Section 105 of the Indian Evidence Act deal with the General Exception and how to introduce those expectations for purpose of deriving the benefit and it has been clearly provided in Section 105 of the Indian Evidence Act that, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such materials. 9. For purpose of appreciation of the submission advanced by the counsel for the parties, we may take a brief survey of the evidence as recorded in the trial for the prosecution, in as much as defence did not adduce any evidence. As noted earlier, the prosecution has adduced 10 witnesses including the P.W.1, Panu Dhibar, P.W.5, Bimala Dhibar, 24 P.W.6, Beda Majhi and P.W.7, Kamala Dhibar and P.W.4, Dr. Gangadhar Pradhan. P.W.2, Jhadeswari Dhibar was the informant, but he did not witness the occurrence. P.W.1 has testified in the trial that to his query why Appellant dealt with the blows on P.W.6, he could not give any answer. P.W.1, namely, Panu Dhibar is an independent witness, he has stated that and he has testified in the trial that he did not see the occurrence, but after the occurrence, he saw the dead body. He was witness to the inquest. He identified the report of the inquest (Ext.1). As it appears, he did not reveal any further material either favourable for the prosecution or the defence. P.W.3, Budhuram Dhibar is also the seizure witness. In his presence one lungi stained with blood, two turkis, handkerchiefs, two socks with blood stains and blood stained earth and sample earth thereof was seized by preparation of the seizure list (Ext.1). P.W.4, Dr. Gangadhar Pradhan has treated Bimala Dhibar (P.W.5) when she was admitted in the District Headquarter Hospital, Deogarh and found the following injuries. “(i) Incised wound of size ½” x ½” over the left upper lip. (ii) Incised wound of size 41/2” x ½” x ½” over the left cheek extending towards the angle of mouth. 25 (iii) Incised wound of size 6” x 2” x 11/2” over the left side of the neck. (iv) Incised wound of size ½” x ½” x ¼” over the right dorsum of the hand. (v) Incised wound of size 3” x 2” x ½” over the left side of the abdomen. (vi) Incised wound of size 4” x 1” x 1” over the left shoulder joint. (vii) Incised wound of size 3” x 1” x ½” over the left arm one inch below the injury No.vi. (viii) Incised wound of size 2” x ½” x ½” over the left arm two inch below the injury no.vi. (ix) Incised wound of size 31/2” x ½” x 1” over the left arm two and half inches below the injury No.vi. (x) Incised wound of size 4” x ½” x ½” over the left arm six inches below the injury No.vi. (xi) Incised wound of size 4” x 1” x 1” over the left arm and left elbow joint with opening of the joint. (xii) Incised wound of size 6” x 2” x 1” over the left forearm (xiii) Multiple incised injuries more than 8 numbers over the left dorsum of the hand cutting the skin muscles and bones. (xiv) Avulsed of the upper left incisor canine and premolar teeth.” According to P.W.4, all these injuries were simple in nature. P.W.4 had also determined the age of the injuries. P.W.5 is the sterling witness. P.W.5, Bimala Dhibar is an injured witness. She is the wife of the Appellant, she has testified that in the evening her father and 26 mother-in-law were talking, the Appellant assaulted her father and mother-in-law with a Paniki. Her father and mother-in-law received injuries on their person by the assault committed by the Appellant by a Paniki. The Appellant also assaulted her and her son Rajesh by Paniki. She had caught their son in her arms. Her son cried, the Appellant snatched away the child from her arms, thereafter, the Appellant assaulted her all over her body including hand, back, neck, head and face etc. In the cross-examination, nothing has been sought to be extracted from her. She lodged the F.I.R. against the Appellant for assaulting her father and mother-in-law and did not stay the matter in the F.I.R. to based on which the police case was registered in respect of that incident. P.W.6, Beda Majhi is father-in-law of the Appellant. He has testified that, he was in the house of the Appellant. When mother of the Appellant asked P.W.5 to serve the food to him suddenly the Appellant became enraged and got up and attempted to deal a blow with Paniki aiming at his neck. He stood up and raised his hand, as a result of which he had received injury on his both the hands. Out of fear, he ran away and got himself medically examined. Only in the police station, he came to know the Appellant has assaulted his wife and murder the son. He identified 27 the Paniki (M.O.I). He has clearly stated in the examination-in-chief, he does not know whether the Appellant was suffering from unsoundness of mind or not. In the cross-examination P.W.6 has categorically stated, he did not have any knowledge that the Appellant was suffering from unsoundness of mind. In this scuffle, he had sustained injuries. P.W.7 the elder brother of the Appellant, informed the occurrence to the police station. He has stated that in the trial that on the date of occurrence at about 8.00 P.M. he heard the alarm “save save”, he went to the house of the Appellant and found the room was closed from inside. He has categorically stated that he heard sound of assault inside the room. In the cross-examination, he has stated as follows: “The accused was unsound of mind at the time of occurrence. Prior to the incident, we had given him medical treatment to suppress the disease. After the assault, the father-in- law of accused and my mother pacified the accused and took him to the room and made him sleep. The wife of accused slept inside the room bolting the door from inside. I heard the sound of assault in the morning” This witness was declared hostile, as he had stated that the Appellant was unsound of mind at the time of occurrence. But, he has admitted that, he did not reveal that fact in the F.I.R. P.W.7 was also cross-examined by the prosecution and the defence, but nothing more than that has revealed. P.W.8, Dr. Sugyani Satpathy has testified that she 28 was attached to the Barkote, C.H.C. on 31.03.2006 and she had examined Jhara Dhibar who came for treatment of the wound measuring 2 ½” x ½” x ½”. She had one incised wound with clean edge tail and downward of size 2 ½” x ½” x ½” over the upper part of the right scapula. The injury was simple in nature and according to her assessment it might have been caused by sharp cutting weapon. She had estimated the time of the injury. She had also examined Beda Majhi (P.W.6) and found the injuries viz, (i) incised wound with involvement of both radius and ulna bone of size 2” x 1” x 1” over the middle of left hand and on posterior surface. The injury was grievous in nature and might have been caused by sharp cutting weapon. She has also estimated the time of the injury. She has categorically stated that no weapon of offence was shown to her. P.W.9 Dr. Manoranjan Samal at the relevant point was working as Asst. Surgeon in the District Headquarter, Hospital, Deogarh. On 31.03.2006 at about 4.30 P.M. on police requisition, he carried out the postmortem examination on the dead body of Raja @ Rajesh Dhibar. In the course of the postmortem examination, he found the following injuries on the person of the deceased: “(i) There are incised wounds on head of size 4” x 1” upto bone depth. 29 (ii) Incised wound on the lower part of left ear interior posterity of size 3” x ½” x 1”. (iii) Incised wound on the left side of the neck (mid position) of size 2 x 1/3” x ½”. (iv) Incised wound on left side of the neck (lower part) of size 3” x ½ x ½”. (v) Incised wound over the sternum of size 1” x ½” x 1/3.” He has also found that the left side of the large vessels of the neck were cut. The outer table of the skull of frontal region was cut incised of 2 ½” length. All the injuries were antemortem in nature. In the postmortem report (Ext.7), he had recorded that the cause of death is excessive bleeding from the vessles due to cut injuries. In the cross-examination, he has given a very reasonable explanation about the use of weapon. But they did not disturb the finding, as he had recorded in the postmortem report (Ext.8). P.W.10, Hrushikesh Meher a Sub-inspector of Police, on 31.03.2006 was posted at Barkote P.S. On that day at about 7.00 A.M. Kamala Dhibar (P.W.7) informed about the occurrence. Having the written report from P.W.7, he registered the specific police case. He identified the report (Ext.9). He has further stated that during the investigation, he examined P.W.7 and other witnesses and visited the different spots. He had also prepared the spot map (Ext.10). He had also seized the weapon of offence. He had caused seizure of the wearing apparels of the deceased by preparing the seizure list (Ext.2) and he had 30 also sent those for the chemical examination and received the report from the chemical examiner R.F.S.L., Sambalpur (Ext.13). He has categorically stated that he examined Kamala Dhibar. In the cross- examination, he has clearly denied the suggestion that the accused (the Appellant herein) was not in sound mind at the time of his arrest. 10. Having revaluated the evidence, we can hold without hesitation that death of Raja @ Rajesh Dhibar son of the Appellant has been caused by the Appellant. Similarly, the Appellant had grievously injured Bimala Dhibar (P.W.5), his wife and Beda Majhi (P.W.6) father- in-law. But, the finding that there was intention to kill Bimala Dhibar and Beda Majhi is without any legal evidence and as such, we are inclined to interfere with the finding of the trial judge that the Appellant has committed the further offence of attempting to murder. As such, we set aside the conviction and sentence of the Appellant under Section 307 of the IPC. But, there is sufficient evidence that the Appellant has voluntarily caused hurt by means of sharp cutting weapon which might cause death. Hence, the Appellant, caused the offence punishable under Section 324 of the IPC is cognate and minor to the offence punishable under Section 307 of the IPC and hence, without framing the formal 31 charge and having taken recourse to Section 220 of the Cr.P.C. we convict the Appellant under Section 324 of the IPC and sentence him to suffer rigorous imprisonment of three years for causing grievous hurt by sharp cutting weapon to Bimala Dhibar and Beda Majhi. 11. Let us now critically appreciate the findings of the trial judge based on which the trial judge has convicted the Appellant under Section 302 of the IPC. The principle defence that has been raised is on the basis of a General Exception under Section 84 of the IPC. Section 84 of the IPC 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. Both the counsel for the parties have made their submission quite elaborately. Law has developed without leaving ambiguity and enunciating that while determining whether the accused is entitled to the benefit of Section 84 of the Code, the Court has to consider the circumstances as preceding the crime or those followed the crime. But, it is equally true that such circumstances must be established by credible evidence. It is the trite law, the circumstances as referred before are all relating to the unsoundness of mind. In 32 Elavarasan vs. State rep. by Inspector of Police: (2011) 7 SCC 110, the apex court has held that it is equally well settled is the proposition that if intention is an essential ingredient of the offence alleged against the accused, the prosecution must establish that ingredient also. Intention or the state of mind of a person that is ordinarily inferred from the circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the body on which it is struck, it would be reasonable to assume that the accused had intention to cause the kind of injury which he inflicted. Having stated that, Section 84 of the IPC can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. But, what is important is that the burden of bringing his/her case under Section 84 of the IPC lies squarely upon the person claiming the benefit of that provision. Section 105 of the Evidence Act is relevant. For this purpose, Section 105 of the Indian Evidence Act is extracted below which provides as follows: “105. Burden of proving that case of accused comes within exceptions.-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within 33 any of the General Exceptions in the Indian Penal Code, (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” Thereafter, the apex court having referred to Dahyabhai Chhaganbhai (supra) has recorded the following principle governing the burden proof in cases where the accused pleads an exception. In the said report in Elavarasan (supra) the following passage from State of U.P. vs. Ram Swarup and Ors has been approvingly restated: “The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea.” It may not be out of context to say the similar principle had also be enunciated by the apex court in Bhikari v. State of Uttar Pradesh: AIR 1966 SC 1. In this case, the Appellant did not adduce any evidence to bring his act under the exception of Section 84 of the IPC. But, Mr. Dash, learned counsel has referred the statement made by P.W.7 during the cross-examination that the Appellant was of unsoundness of mind at the time of occurrence and prior to the incident they had given medical treatment. In this regard, we may note that P.W.7 the informant in his written information as lodged to the police station, 34 he did not utter a single word in this regard and it is the case of the prosecution that even, he did not state anything to the police. Consequently, for this improvement in his testimony at the instance of the prosecution P.W.7 was declared hostile. During the cross- examination by the prosecution, P.W.7 has admitted that he has not written in his F.I.R. that the Appellant was lunatic. He has also not stated before the Investigating Officer that the Appellant was of unsoundness mind at the time of the occurrence. He has also not stated before the Investigating Officer that the Appellant was treated by some doctor. For the first time, it has been stated that the Appellant was of unsoundness of mind. But, he has denied the suggestion that his brother was not lunatic. We are therefore, persuaded by the circumstances relating to the revaluation of fact of unsoundness of mind that testimony of P.W.7 in this regard cannot be relied on. We have also scrutinized the statement of P.W.5 who has categorically stated in her cross-examination that her husband (the Appellant) was in proper state of mind on the day of occurrence and they were living happily. That apart, however, P.W.2, the mother of the Appellant has stated that the accused was semi mad at the time of occurrence and he was suffering from fever on the date of 35 occurrence. She had categorically stated in the cross-examination that the Appellant was of unsound of mind. Even, P.W.1 in his cross- examination stated that the Appellant was semi mad at the time of occurrence. On the basis of these circumstances, the Appellant tried to build up a case that at the relevant time, he was not capable of knowing the nature of the act or that he was doing was either wrong or contrary to law. True it is that there had been no step taken by the Court to get the Appellant examined by the medical expert following the procedure as laid down in Section 329 of the Cr.P.C. The said procedure was not resorted by the trial judge probably for the reason that the conduct of the demeanor of the Appellant during the trial did not indicate anything that his required to be referred to psychiatric or clinical psychology for care and treatment and also for reporting to the Court. That apart, in the impugned judgment, the trial has categorically observed that P.W.10 has categorically stated that during the investigation, he did not notice any abnormal behavour of the Appellant. As such, there is no medical proof in favour of the Appellant. Even, no mens rea has been established by the prosecution. P.W.6 has made a reverent statement in the trial, which is in his words as follows: 36 “I had stayed in the house of accused along with him and his mother. We had sat together on the outer verandah of the house. The mother of accused told my daughter to serve food to me. Hearing this, the accused got enraged and got up and attempted to deal a blow with Paniki aiming at my neck.” Similar indications have been made by P.W.1. That apart, P.W.3 Budhuram Dhibar even though has stated in the cross- examination that the Appellant was unsound of mind at the time of occurrence. But he has admitted that, he went to the place of occurrence only after the police arrived there. We have already detailed the statement of P.Ws.1 and 2 in this regard. But, the statements made here and there to bring the Appellant cannot patched up in the category to avail the exception under Section 84 of the IPC. At the same time, we cannot simply thrust aside those circumstances. There is no evidence in our considered view of mens rea/ intention to kill. There is no direct evidence about mens rea and intention to kill. But this Court cannot forget the brutality of slitting the throat of the small child of the Appellant. As we have not accepted that the act of the Appellant can be brought under the exception as provided by Section 84 of the IPC, as there is no reliable evidence in this regard and more so the burden that rested with the Appellant has not been discharged to make out his 37 defence taking recourse to Section 84 of the IPC, hence, we are of the considered view, the Appellant cannot be given any benefit under Section 84 of the IPC. Having due regard to the transaction of the crime, we are of the view that the Appellant is also not entitled to the exception 4 of Section 300 of the IPC. Exception 4 under Section 300 of the IPC, provides that culpable homicide is not amounting murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender have been taken undue advantage acted in cruel or unusual manner. In this case, there was no fight and there was no reason to get enraged by the Appellant. Moreover, it appears that defence has built up the story of unsoundness of mind at the trial. Even, they have not persuaded the trial judge to get the opinion from the psychiatric or the clinical psychologist as regards the unsoundness of mind of the Appellant at the time of occurrence. At the same time, it is apparent the way the Appellant killed his small son slitting his throat it is nothing short of cruel manner. To invoke Exception 4 of Section 300 of the IPC, four requirements must be simultaneously satisfied. Those are: (i) There was a sudden fight 38 (ii) There was no premeditation (iii) The act was done in a heat of passion; and (iv) The assailant had not been taken any undue advantage or acted in a cruel manner. The 4th requirement cannot be isolated while considering, whether a case would be called the culpable homicide not amounting to murder. In Virsa Singh v. State of Punjab: AIR 1958 SC 465, the apex court has observed that in absence of any circumstances to show that the injury was caused accidentally or it had been presumed that accused had intended to cause the inflict injury and those contention of Clause 3 of Section 300 of the IPC stands satisfied. In such circumstances, the conviction under Section 302 of the IPC cannot be interfered with. 12. Having observed that, we are not inclined to interfere with the conviction under Section 302 of the IPC and the consequential sentence as awarded by the learned trial judge. We must observe that both the sentences as based under Section 302 of the IPC and 324 of the IPC would run concurrently. 39 13. In view of the above observation, the appeal stands partly allowed. 14. If LCRs are still lying with the Registry those be returned. Savitri Ratho, J. I agree. …………………………… ( S. Talapatra, J.) …………………………… (Savitri Ratho, J.) Orissa High Court, Cuttack. The 16th day of May, 2023. L. Murmu, Senior Stenographer Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 03-Oct-2023 15:03:07
Arguments
Mr. H.B. Dash, learned Legal Aid Counsel appearing for the Appellant strenuously criticized the finding of conviction and stated that even though P.W.5 has categorically stated that her husband (the Appellant) was not in a sound state of mind when he assaulted his father- in-law and his mother and when she tried to snatch away the Paniki from his hand, she sustained the injuries. From the examination of P.W.6, it is evident that as the mother of the Appellant told P.W.5 to serve food to him, the Appellant suddenly got up and attempted to dealt blow with Paniki aiming at his neck. When he tried to resist the blow, he received injuries on his both hands. So far as the assault of the P.W.5 is concerned, P.W.6 has clearly stated that he had heard that P.W.5 was also assaulted. P.W.7, Kamala Dhibar who lodged the F.I.R. has 4 admitted that he heard the alarm save me save me from inside the room. The room was closed from inside. During the cross-examination, he has categorically stated the Appellant was of unsound of mind at the time of occurrence. Prior to the incident the Appellant was giving medical treatment to suppress the deceased. After the assault the father-in-law of the Appellant and his mother pacified the Appellant and took him to the room and made him sleep. He had also heard the sound of assault. When P.W.7 testified that the Appellant was suffering from mental disorder, he was declared hostile and allowed to be cross-examined under Section 154 of the Indian Evidence Act. According to Mr. Dash, learned counsel, the Appellant was suffering from unsoundness of mind and from the evidence of P.Ws.6 and 7 it has been clearly established that at the time of occurrence, the Appellant was not having the sanity of the mind. According to Mr. Dash, learned counsel that aspect to the matter did not get due importance when returning the finding of conviction, as a cumulative reading of the evidence indicates that at the time of occurrence, the Appellant was suffering from unsoundness of mind and out of rage gave the blow on his father-in-law and later on to his wife. Even, if no defence evidence was adduced for bringing the offence under 5 the exception as provided under Section 84 of the IPC, as the Appellant has committed the offence by reason of unsoundness of mind as at that point of time he was incapable of knowing the nature of the act, Mr. Dash, learned counsel has further added that, if that nature of examination is quite categorically analyzed, it would be apparent that the Appellant was suffering from unsoundness of mind at the time of occurrence. The evidence in this regard has been totally ignored by simply stating that there is no medical evidence in support of that plea. The Investigating Officer since has denied that the Appellant was not in unsound mind at the time of arrest, the plea of the defence as taken under Section 84 of the IPC was discarded and for that purpose, even the evidence of P.W.5 has been used by the trial Judge. 5. Per contra Ms. S. Patnaik, learned Additional Government Advocate appearing for the State has categorically stated that the prosecution has been successful to substantiate the charge under Sections 307/302 of the IPC to the hilt. In order to repel the submission as advanced by Mr. Dash, learned counsel for the Appellant on the ground of unsoundness of mind. Ms. Patnaik, learned Additional Government Advocate has stated that to derive the benefit under the general 6 exception provided in Section 84 of the IPC, the required evidence has to be laid in the evidence. The evidence of the prosecution suffers from no infirmity as P.W.5, the wife of the Appellant and the unfortunate mother was assaulted and her one and half year old infant was hacked to death in front of her eyes by the Appellant. She was rescued by breaking the door. The door was bolted from inside by the Appellant. P.W.5 was found lying in a pool of blood and she was immediately shifted to the hospital with 14 incised injuries on different parts of the body. The dead body of the deceased was recovered from the same room with 5 incised wounds on head, left ear, neck and sternum. That it is evident without any shred of doubt that the Appellant assaulted both P.W.5 and their one and half year old baby in discriminately after bolting the door from inside. Ms. Patnaik, learned Additional Government Advocate has clearly submitted that the prosecution could not establish the motive of the case, but when there is an eye witness, the motive to cause death can be derived and the theory of motive in such circumstances loses its relevancy. Ms. Patnaik, learned Additional Government Advocate has distinctly stated that no defence of legal insanity has been taken in the memorandum of appeal. But, in the course of argument, such defence 7 has been sought to be built up which cannot be entertained. According to Ms. Patnaik, learned Additional Government Advocate, the Appellant has produced no evidence either documentary or oral to substantiate the plea of unsoundness of mind at the time of occurrence. She has also stated that there had been no compliance of Section 329 of the Cr.P.C. which is quite elaborate and mandatory in character. For purpose of reference, Section 329 of the Cr.P.C is reproduced hereunder: “329. Procedure in case of person of unsound mind tried before Court. (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case. (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court.” If on completion of the procedure as laid down in section 329 as reproduced above, it appears that the accused is incapable of entering defence by reason of unsoundness of mind, the Court shall keep in view the nature of the act committed in the extent of the unsoundness of mind to determine the release of the accused. Such release will be 8 subject to the adequate security to ensure to prevent the accused from doing injury to himself or to any other person. The said procedure for obvious reason was not followed, as the plea of unsoundness of mind at the time of commission of offence was not pressed at the appropriate stage and neither court of the Magistrate nor the trial Court had any occasion to hold inquiry by the expert as regards the state of mental health of the Appellant, in as much such plea of legal insanity (under Section 84 of the IPC) was not raised either before the Magistrate nor the trial judge had noticed any abnormal behaviour or demeanor to suggest any kind of mental abnormality, unsoundness of mind or insanity. But if the court had felt during trial that the Appellant was not in normal state of mind, it would have definitely resorted to Section 329 of the Cr.P.C. Without any medical report, regarding his mental health or any observation made by the court, the claim of legal insanity by the Appellant is not at all sustainable in the eye of law. Ms. Patnaik, learned Additional Government Advocate has also contended that P.W.1 an independent witness, P.W.2 the mother of the Appellant and P.W.7 the younger brother of the Appellant, have stated about the unsoundness of mind at the time of occurrence. P.W.7 even stated that the Appellant was 9 under treatment to suppress the mental illness. P.W.7, however, was declared hostile, in as much as, he did not state about that fact either in the F.I.R. nor to the police that Appellant was suffering from unsoundness of mind at the time of occurrence. P.W.5 has stated in very clear terms that her husband (the Appellant) was in a proper state of mind on the day of occurrence. P.W.7 in the cross-examination has clearly denied the suggestion that the Appellant was suffering from any unsoundness of mind. From the evidence as laid by the prosecution, it would be apparent that at the time of occurrence the Appellant was not in capable of knowing the nature of the act that he was indulging. Hence, this appeal deserves to be dismissed. 6. Ms. Patnaik, learned Additional Government Advocate has relied on the decision of the apex court in Sudhakaran vs. State of Kerala: (2010) 10 SCC 582, where the apex court having regard to the provision of Section 84 of the IPC had occasion to observe as follows: “A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a 10 decision of the House of Lords rendered in the case of R. v. Daniel Mc Naughten 1843 RR 59: 8ER 718(HL). In that case, the House of Lords formulated the famous Mc Naughten Rules on the basis of the five questions, which had been referred to them with regard to the defence of insanity. The reference came to be made in a case where Mc Naughten was charged with the murder by shooting of Edward Drummond, who was the Pvt. Secretary of the then Prime Minister of England Sir Robert Peel. The accused Mc Naughten produced medical evidence to prove that, he was not, at the time of committing the act, in a sound state of mind. He claimed that he was suffering from an insane delusion that the Prime Minister was the only reason for all his problems. He had also claimed that as a result of the insane delusion, he mistook Drummond for the Prime Minister and committed his murder by shooting him. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The aforesaid verdict became the subject of debate in the House of Lords. Therefore, it was determined to take the opinion of all the judges on the law governing such cases. Five questions were subsequently put to the Law Lords. The questions as well as the answers delivered by Lord Chief Justice Tindal were as under: Q.1 What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing a revenging some supposed grievance or injury, or of producing some public benefit? Answer in other respects insane, we are of opinion, Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land. 11 Q.2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? Q.3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed? Answers - to the second and third questions That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put as to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require. 12 Q.4. If a person under an insane delusion as to the existing facts commits and offence in consequence thereof, is he thereby excused? Answer The answer must, of course, depend on the nature of the delusion, but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self- defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. Q.5. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time? Answer We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right. A comparison of answers to question No. 2 and 3 and the provision contained in Section 84 of the IPC would clearly indicate that the Section is modeled on the aforesaid answers. 13 In Sudhakaran (supra), the apex court was dwelling on the burden of proof as regards the exception as carved out under Section 84 of the IPC in the following manner: “When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court such, as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, 14 raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.