Allowed

Namdev Vithoba Jadhav v. the State of Maharashtra

Bombay HC6 Aug 2013APEAL/209/2010

Case brief

AI extract

What is this about?

High Court Criminal Appeal where appellant, convicted of murder and grievous hurt, argued insanity under IPC Section 84. The Court held that evidence of psychiatric illness, hospitalization, and shock treatment established unsoundness of mind at the time of the act, creating reasonable doubt regarding mens rea. Appeal allowed and acquittal granted.

What did the court decide?

Appellant acquitted of offences under Sections 302 and 323 IPC and directed to be released.

Namdev Vithoba Jadhav Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 209 OF 2010 (Through Jail)

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Namdeo Vithoba Jadhav ] R/o. Sidhapur, Tal. Mangalwedha, ] Dist. Solapur. ] Appellant (Org. Accused)

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Versus

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The State of Maharashtra

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] Respondent

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Ms. Amita Kuttikrishnan, Advocate appointed for the Appellant

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Mrs. V.R. Bhonsale, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ

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DATE : AUGUST 6, 2013.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-

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The appellant-original accused has preferred this appeal

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against the judgment and order dated 07.08.2008 passed by the

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Additional Sessions Judge, Pandharpur in Sessions Case No. 1 of

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By the said judgment and order, the learned Sessions

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Judge convicted the appellant for the offence punishable under

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Sections 302 of IPC and sentenced him to suffer rigorous

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imprisonment for life and fine of Rs. 100/- in default RI for 15

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days. The appellant was also convicted for the offence under

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Section 323 of the IPC and sentenced to rigorous imprisonment for

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three months and fine of Rs. 50/- in default, RI for seven days.

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The learned Sessions Judge directed that both the substantive

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sentences of imprisonment shall run concurrently.

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The prosecution case briefly stated, is as under:

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(a) The appellant was married to Mangal. They had three children i.e daughter PW 1 Laxmi and sons PW 3 Akash and Prakash. At the time of the incident, PW 1 Laxmi was married and residing at Mangalwedha with her husband. The marriage of Laxmi took place about four years prior to the incident. About two days prior to the incident, Laxmi had come to her parental home for festival of Mahalaxmi. Since about four months prior to the incident, the appellant was beating his wife Mangal as she did not

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get Rs. 25000/- from her parents for laying pipeline in the field.

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(b) On 19.09.2007, an idol of Mahalaxmi was installed in

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the house of the appellant. They performed the pooja and thereafter had dinner. At about midnight, they went to sleep. The house consisted of two rooms. Mangal, PW 1 Laxmi and PW 3 Akash slept in one room in which they had kept idol of Mahalaxmi.

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The appellant slept in the other room in the house. Other brother Prakash had gone to sleep in Maruti Temple.

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heard, hence, PW 1 Laxmi and PW 3 Akash got up. They saw that their father i.e the appellant was assaulting their mother with a pick-axe. PW 1 Laxmi inquired with her father i.e the appellant

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why he was beating her mother with pick-axe to which her father replied that "Your mother has ruined me. I had told her to bring Rs. 25000/- for the pipeline, but she did not bring." When Laxmi tried to intervene, she also sustained injury on her forehead. Mangal died on the spot. The incident was witnessed by PW 1 Laxmi and PW 3 Akash.

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(d) PW 1 Laxmi lodged FIR (Exh. 14). Thereafter,

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investigation commenced. Dead body of Laxmi was sent for

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postmortem. PW 2 Dr. Pattanshetti performed the postmortem on

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the dead body of Mangal. Dr. Pattanshetti found in all 4 injuries

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which are as follows:-

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i. Laceration over right side of forehead on frontal region of scalp 3 x 2 x 3 cm bone deep. Fracture of right frontal bone underneath. Active bleeding of wound.

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ii. CLW over right eyebrow 1 x 1/2 x 1/2 cm, clotted blood.

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iii. Laceration on right cheek 2 x 1/2 x 1/2 cm, clotted blood. Fracture of maxillary bone with dislocation of teeth of upper jaw right side.

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iv. Laceration and fracture over left mandible region on chin 3 x 2 x 2 cm with fracture of left mandible bone and dislocation of teeth of lower jaw left side.

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In opinion of Dr. Pattanshetti, all the injuries were sufficient

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in ordinary course of nature to cause the death of the deceased.

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The cause of death was due to intra-cranial hemorrhage due to fractures of skull bone, maxillary bone and mandible bone. In the

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opinion of the Doctor, the injuries were possible by muddemal article pick-axe. The appellant was arrested on 20.09.2007 from

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the spot of the incident i.e his house. After completion of

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investigation, the charge sheet came to be filed.

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Charge came to be framed against the appellant under

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Sections 302 and 323 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of

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total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal.

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We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that appellant assaulted his wife Mangal with pick-axe and

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caused her death. During the course of the said incident, he also

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caused injuries to his daughter PW 1 Laxmi.

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The conviction is based on the evidence of PW 1 Laxmi who

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is the daughter of the appellant and the deceased. Laxmi was married about four years prior to the incident, however, two days prior to the incident, she had come to her parental home for festival of Mahalaxmi. About four months prior to the incident, her father had started beating her mother as her father had told her mother to bring Rs. 25000/- for laying pipeline in the field. However, as Mangal could not bring the same, the appellant used to beat Mangal. PW 1 Laxmi has stated that on 19.09.2007, an idol of Mahalaxmi was installed in the house of the appellant. They had performed the pooja and thereafter had dinner. At about midnight, they went to sleep. The house consisted of two rooms. Mangal, PW 1 Laxmi and PW 3 Akash slept in one room in which they had kept idol of Mahalaxmi. The appellant slept in the other room in the house. Other brother Prakash had gone to sleep in Maruti Temple. At about 05.30 a.m., sound of

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scream of Mangal was heard, hence, PW 1 Laxmi and PW 3 Akash

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got up. They saw that their father i.e the appellant was assaulting

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their mother with a pick-axe. PW 1 Laxmi inquired with her father i.e the appellant why he was beating her mother with pick-axe to which her father replied that "Your mother has ruined me. I had told her to bring Rs. 25000/- for the pipeline, but she did not bring." When Laxmi tried to intervene, she also sustained injury on her forehead. Mangal died on the spot. PW 1 Laxmi lodged FIR (Exh. 14).

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The evidence of PW 3 Akash who was the son of the

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appellant and the deceased is on similar lines as that of PW 1 Laxmi. He is also an eye witness to the incident. Nothing has been elicited in cross-examination of these two witnesses so as to

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disbelieve their testimony about assault by the appellant on his

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wife Mangal and about PW 1 Laxmi being injured in the incident.

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It may be stated that it is not disputed by the appellant that

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his wife Mangal died a homicidal death. It is also not disputed that the appellant caused her death by assaulting her with pick-

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axe but defence of the appellant is that the death of Mangal was caused by him during an attack of insanity. Ms. Kuttikrishnan, learned Advocate for the appellant submitted that the appellant was suffering from mental illness and at the time of the incident, during a bout of mental disturbance, the appellant murdered his wife Mangal. Ms. Kuttikrishnan submitted that in such case, the appellant is entitled to benefit of the Exception in Section 84 of the IPC. In order to support her contention that the appellant was suffering from mental insanity since a long time, she has drawn our attention to the evidence of PW 1 Laxmi, PW 3 Akash and DW

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1 Dr. Burate.

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DW 1 Dr. Burate has stated that on 27.01.2007, the

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appellant was brought to him by his nephew for complaint such as sleeplessness, restlessness, tremors, irritability, irrelevant talk and eating irregularly. DW 1 Dr. Burate examined the appellant and found that he was suffering from schizophrenia. Dr. Burate noticed that the patient was having intermittent episodes of abnormal behavior on account of said illness. According to Dr.

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Burate, schizophrenia is one of the major mental disorders. Dr. Burate produced the papers relating to the treatment given by him to the appellant.

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Ms. Kuttikrishnan also relied on the evidence of PW 1 Laxmi

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who is an eye witness to the incident. Laxmi has admitted that it is true that about 8 months prior to the incident, the appellant was taken to Yerawada Mental Hospital. He was admitted there for about three months. In February 2007, the appellant had taken treatment of Dr. Burate of Solapur for about one month. She has further admitted that thereafter, her father was treated in the Civil Hospital at Solapur and he was given shock treatment. PW 1 Laxmi has further stated that she did not file any complaint regarding the previous assault by her father on her mother as they thought that the appellant was doing the said act under the fit of mental attacks.

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PW 3 Akash has stated that he and his uncle had taken his

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father i.e the appellant to Yerawada Mental Hospital for treatment

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7 to 8 months prior to the incident. He also deposited the expenses for his treatment. At that time, treatment of his father by medicines, tablets and shock treatment was going on for two months. He has admitted that the appellant was admitted in Yerawada Mental Hospital in the month of November 2006 and he was brought back in the month of January 2007. Thereafter, his father was taking treatment from psychiatrist Dr. Burate of Solapur. PW 3 Akash has admitted that it is true that even after taking treatment of Dr. Burate, as the condition of his father was not cured, he was given shock treatment twice in the Civil Hospital at Solapur. It is important to note that this witness has admitted that it is true that even thereafter, the appellant continued to take tablets for mental disorder. He further admitted

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that on account of mental illness of the appellant, he works whenever he is fit otherwise he sits at home. Thus, the evidence of these three witnesses i.e PW 1 Laxmi, PW 3 Akash and DW 1 Dr.

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Burate shows that the appellant was suffering from mental illness.

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Looking to the evidence of these three witnesses, the only

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aspect to be considered is the defence of insanity raised by the appellant. Ms. Kuttikrishnan vehemently argued that the appellant was suffering from a bout of insanity at the time of the incident and he is thus, entitled to the benefit of general exception contained in Section 84 of IPC. She pointed out that the evidence of these three witnesses i.e PW 1 Laxmi, PW 3 Akash and

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DW 1 Dr.Burate and the other proved medical evidence also shows that the appellant was suffering from serious mental illness i.e schizophrenia. He was an indoor patient in Yerawada Mental Hospital for about three months and he had also been given electric shock treatment which show that his ailment was serious in nature, however, Mrs. Bhonsale, the learned APP urged that the appellant has failed to prove that he was suffering from unsoundness of mind at the time of commission of the offence. She submitted that the fact that the appellant was suffering from mental illness before or after commission of the offence is of no consequence but it is to be proved that the appellant was suffering from mental illness at the time of the incident. She

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further submitted that the appellant has failed to prove that at the

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time of the incident, he was suffering from mental illness.

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The burden to prove that at the time of the incident, the

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accused was of unsound mind and as a result thereof, he was incapable of knowing the nature and consequences of his act is on the accused. Section 84 of the IPC is one of the provisions in

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Chapter IV of IPC which deals with "General Exceptions". That 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 of the act, or that he is doing what is either wrong or contrary to law. The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105

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of the Indian Evidence Act. Under the said section, the Court shall presume the absence of such circumstances. (Illustration (a) to Section 105 is as follows):-

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"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

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The burden of proof is on A."

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The question whether the appellant has proved the existence of circumstances bringing his case within the purview of

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Section 84 will have to be examined from the totality of circumstances. The unsoundness of mind as a result whereof one is incapable of knowing the nature and consequences of the act is a state of mind of a person which, ordinarily can be inferred from

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the circumstances.

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At this stage, it is necessary to notice the nature of the burden that is required to be discharged by the accused to get benefit of Section 84 of the IPC. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat¹ , the Supreme Court has held that 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 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

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in that case the Court would be entitled to acquit the accused on

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the ground that the general burden of proof resting on

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the prosecution was not discharged. The burden of

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1 (1964) 7 SCR 361

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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 probabilities.

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The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions :

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(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 sane, when he committed the crime, in the sense laid down by Section 84 of IPC; the accused may rebut it by placing before the

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Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him 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

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he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the

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prosecution may raise a reasonable doubt in the mind of the Court

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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

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that the general burden of proof, resting on the prosecution was not discharged. Similar view was taken by

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the Supreme Court in the case of Shrikant Anandrao

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Bhosale Vs. State of Maharashtra² .

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The circumstances that stand proved in this case

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in relation to the defence of the appellant of lunacy are that :

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i. the appellant had a history of psychiatric illness;

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ii. he was admitted in Yerawada Mental Hospital for about 3

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months;

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iii. his mental illness was to such an extent that he was given

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electric shocks in addition to other treatment;

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iv. after killing his wife, he made no attempt to hide or run away but he stood there at the spot;

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v. The witnesses have stated that earlier whenever the

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2 AIR 2002 SC 3399

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appellant used to assault, they used to think that he was

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doing so during a fit of mental illness.

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If the totality of the circumstances is seen in the present

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case, it proves that the appellant was suffering from schizophrenia. The evidence of PW 3 Akash shows that the appellant, even after his hospitalization in the Yerawada Mental Hospital, was still taking treatment. The unsoundness of mind before and after the incident is relevant factor. From the circumstances of the case, an inference certainly can be drawn that the appellant was under a delusion at the relevant time. He was under an attack of mental ailment. Having regard to the nature of burden on the appellant, we are of the view that the appellant has proved the existence of circumstances as required by Section 105 of the Evidence Act so as to get benefit of Section 84 of the IPC. There is a reasonable doubt that at the

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time of commission of the crime, the appellant was incapable of knowing the nature and consequences of the act by reason of

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unsoundness of mind and, thus, he is entitled to the benefit of

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