Pradeep Khatiwara v. State of Sikkim

Judgment

1. The Appellant was tried for the offence of murder under Section 300 of the India Penal Code, 1860 (hereinafter, the ―IPC‖), punishable under Section 302 of the IPC, for causing the death of one Mikmar Lepcha and one Dhan Keshi Tamang at a cardamom drying shed, situated at Sumindang, Upper Dzongu, North Sikkim, on 01-12-2019. The Court of the Learned Sessions Judge, North Sikkim, at Mangan, by the impugned Judgment, dated 26-11-2020, in Sessions Trial Case No.02 of 2020 (State of Sikkim vs. Pradeep Khatiwara) convicted the Appellant of the offence as charged. Vide Order on Sentence, dated 23-12-2020, the Convict was sentenced to undergo rigorous imprisonment for life. Fine of ₹ 5,000/- (Rupees five thousand) only, was imposed on him, with a default clause of imprisonment. Crl. A. No.03 of 2021 2 Pradeep Khatiwara vs. State of Sikkim

2. The offence came to light when Exhibit 1, the First Information Report (FIR) was lodged by the Complainant, Ranshor Limboo, (PW-3) of Chadey, North Sikkim, on 03-12-2019, before the Mangan Police Station, North Sikkim. Based on Exhibit 1, a case was registered against the Appellant who was suspected to have committed the offence and investigation was taken up by PW- 14, Police Inspector (P.I.), Sher Bahadur Manger. Charge-Sheet was submitted against the Appellant under Section 300 of the IPC for committing the murder of the two victims named above. The Appellant took the plea of ―not guilty‖ to the charge framed against him by the Learned Trial Court, for two counts of murder. The Prosecution sought to establish its case beyond a reasonable doubt by examining fourteen witnesses. The Learned Trial Court thereafter examined the Appellant under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the ―Cr.P.C.‖), during which he admitted to having assaulted the victims, in turns, with a wooden plank and having thrown the dead body of Mikmar Lepcha from a cliff, while Dhan Keshi Tamang was assaulted with an axe and her body tumbled down, below the cardamom drying shed.

His defence was that, he was first attacked by the two victims upon which he retaliated. He sought to examine three witnesses. DW-1, his mother deposed that when the Appellant was studying in Class VIII, he accidentally knocked over a lamp and a fire broke out in their house, after which his mental status became impaired. That, he was treated by a Psychiatrist in Singtam. That, the Appellant used to be in possession of his medical documents. DW-2, the Psychiatrist, who treated the Appellant, deposed that he had prescribed medication for Psychosis to a person named Pradeep Khatiwara. DW-3 was the sister of the Appellant who claimed that Crl. A. No.03 of 2021 3 Pradeep Khatiwara vs. State of Sikkim in the year 2011-12, she had taken him to a Psychiatrist as the Appellant was depressed. Thereafter, DW-2 in 2018 had prescribed medication for the Appellant and he was taken to the Psychiatrist four times. DWs 1, 2 and 3, at that stage furnished no documentary evidence to substantiate the facts regarding the mental status of the Appellant as deposed by them. The Learned Trial Court on consideration of all the evidence on record convicted the Appellant as delineated above.

3. The Prosecution narrative is that the Appellant along with the two deceased persons were employed by PW-2 at Sumindang, North Sikkim, after the Diwali of 2019, for harvesting the cardamom fruits in his field. All three resided in the cardamom drying shed of PW-2. About a week prior to the incident, the deceased Mikmar Lepcha had complained to PW-2 of having been threatened with death by the Appellant who had wielded his bamphok (Machete) in front of him. PW-2 had gone to the shed and settled the matter. However, on the evening of 01-12-2019 Mikmar Lepcha was assaulted with a wooden plank, while Dhan Keshi Tamang was stuck with an axe, by the Appellant, resulting in the death of both the persons.

4. In Appeal, the arguments raised by Learned Counsel for the Appellant before this Court were that the question of unsoundness of mind of the Appellant ought to have been first determined by the Learned Trial Court before proceeding with the trial. The process not having been so done, the trial is vitiated. Besides, the Appellant has clearly stated in his Section 313 of the Cr.P.C. statement that the deceased had attacked him first, where upon he retaliated and he had no motive to kill them. That, apart from the plea of insanity, the case being one of circumstantial Crl. A. No.03 of 2021 4 Pradeep Khatiwara vs. State of Sikkim evidence as the Prosecution case was devoid of eye witnesses to the incident, the evidence furnished by the Prosecution was not consistent with the guilt of the Appellant to establish the chain of circumstances against him. That, one Numberi Rai was instrumental in informing the Complainant, PW-3, that of the three persons who had been working in the cardamom drying shed, only one could be seen and that he had a sharp weapon in his hand. He was not made a Prosecution witness for which an adverse inference can be drawn against the Prosecution. Exhibit 1 was lodged on 03- 12-2019, on which date the arrest of the Appellant was also effected and he was remanded to Judicial Custody. About five months thereafter, on 12-05-2020, the Appellant was referred for medical treatment, from Judicial Custody, as he complained of inability to sleep, he was suspicious that people were talking about him and was also irritable. DW-4, the Senior Consultant Psychiatrist, at STNM Hospital, prescribed him medication, for Psychosis and Depression. That, DW-2, the Psychiatrist had earlier treated the Appellant on 27-11-2017 as a patient of Psychosis and had last treated him in April, 2018 as revealed in his evidence. The evidence of DW-2 finds corroboration in that of DW-3, who vouched for the fact that the Appellant was being treated for mental health problems by DW-2, who had prescribed medication to him. DW-2 had advised her (DW-3) to listen to the problems of the Appellant. Consequently, it is evident that the Appellant was a patient of Psychosis, entitling him to the benefit of Section 84 of the IPC. That, on an application filed by the Appellant under Section 391 of the Cr.P.C. before this Court, pending the Appeal, this Court on 02-08-2023 ordered that, the evidence of DW-2 be recorded by the concerned Court, for the limited purpose of Crl. A. No.03 of 2021 5 Pradeep Khatiwara vs. State of Sikkim exhibiting the relevant medical documents. Pursuant thereto, DW-2 was examined on 19-10-2023 and necessary documents were exhibited. Reliance was placed on Exhibit D2/DW-2 the certificate issued by DW-2, dated 08-06-2023, wherein it was mentioned that the Appellant had been treated by DW-2 on 27-11-2017 and 18- 12-2017. Exhibit D3/DW-2 the certified copy of the page of the ―New Patient’s Register‖, dated 27-11-2017, was also identified by DW-2, where the name of the Appellant appeared at sl.no.52. That, Exhibit D4/DW-2, the certified copy of the relevant page of the follow up register of the District Hospital, Singtam, dated 18-12- 2017 bore the name of the Appellant at Serial No.60. That, in fact DW-4, the Senior Consultant Psychiatrist, also deposed as he had been treating the Appellant in State Central Prison, Rongyek, since May 2020. The witness identified Exhibit D1/DW-4 as the Prisoner Treatment Booklet with his signatures on it. DW-4 vouched for the fact that the Appellant is under his treatment. DW-4 also stated that on 02-02-2022 at around 1400 hours, the Appellant had tried to commit suicide, by hanging, but the timely intervention of his cell inmates prevented the event. On the order of DW-4, the jail authorities admitted the Appellant to the STNM Hospital, at Gangtok, on 02-02-2022 for counseling and treatment from where he was discharged on 11-02-2022 and returned to Judicial Custody. It was canvassed by Learned Counsel that, both DW-2 and DW-4 have deposed that Psychosis can recur and such patients require regular treatment for an extended duration. Conceding that there were no materials to show that he was unstable at the time of incident, Learned Counsel however urged that, the offence committed on 01-12-2019 was a result of the recurrence of his illness as his treatment had ceased by then. Consequently, there Crl. A. No.03 of 2021 6 Pradeep Khatiwara vs. State of Sikkim can be no denial of the fact that the Appellant was suffering from mental illness preceding, attending and following the offence of murder. Learned Counsel fortified his submissions with reliance on Shrikant Anandrao Bhosale vs. State of Maharashtra1 and contended that the burden of proof that the Appellant was of unsound mind and therefore incapable of knowing the consequences of his acts is clearly established by DWs 1, 2, 3 and 4, along with the documentary evidence exhibited. That, the Learned Trial Court ignored the initial evidence to which it was privy and failed to extend the benefit of Section 84 of the IPC to the Appellant on which count reliance was placed on Devidas Loka Rathod vs. State of Maharashtra2. It was contended that the Prosecution has failed to lead any evidence in rebuttal, apart from its inability to establish its case beyond a reasonable doubt. The assailed Judgment being perverse and against the weight of evidence, deserves to be set aside.

5. Learned Additional Public Prosecutor for the State- Respondent while seriously repelling the arguments advanced by the Learned Counsel for the Appellant, contended that, the offence was heinous with no evidence furnished by the Appellant to prove that at the time of the incident, he was suffering from mental illness. Conceding that evidence was indeed furnished by the Appellant to establish that he was suffering from mental health issues preceding and following the incident, it was reiterated that no proof was furnished to indicate insanity attending the incident. Relying on the evidence of PW-8, Dr. O. T. Lepcha, who conducted the postmortem on the deceased victims, it was urged that several injuries were inflicted on the persons of the deceased, mercilessly,