Dismissed

Basavaraj S/O Basappa Hosur, v. the State of Karnataka

Karnataka HC10 Mar 2020CRL.A/100119/2015

Case brief

AI extract

What is this about?

This criminal appeal challenging a conviction and death sentence based on murder and intentional insult. The High Court examined the appellant's plea of insanity under Section 84 IPC, finding the burden of proving unsound mind of mind at the time of the offence was not discharged, thus dismissing the appeal.

What did the court decide?

The criminal appeal is dismissed and the conviction and sentence of the trial court are confirmed.

Basavaraj S/O Basappa Hosur, Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF MARCH 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL

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AND

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THE HON’BLE MR.JUSTICE M.I.ARUN

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CRIMINAL APPEAL NO.100119 OF 2015

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Between:

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Basavaraj S/o.Basappa Hosur, Age: 41 years, Occ: Agriculture, R/o.: Sandigawad, Tq: Ron, Dist: Gadag.

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... Appellant

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(By Smt.Shashikala L.Desai, Advocate)

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And:

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The State Of Karnataka, Ron Police Station, Dist: Gadag, Rep. by Public Prosecutor, High Court of Karnataka, Dharwad Bench.

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... Respondent

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(By Sri.V.M. Banakar, Addl. SPP)

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This criminal appeal is filed under Section 374(2) of Cr.P.C. against the judgment of conviction and order of sentence passed by the Addl. District and Sessions Judge, Gadag, in S.C.No.57/2013, dated 13.04.2015 for the offences punishable under Sections 504, 506 and 302 of IPC and etc.

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This appeal coming on for dictating judgment, this day, B.A.Patil J., delivered the following:

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ORDER

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The appellant-accused is before this Court challenging the judgment of conviction and order of sentence passed by the learned Addl. District and Sessions Judge, Gadag in S.C.No.57 of 2013, dated 13.04.2015.

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We have heard the learned counsel appearing for the appellant-accused and the learned Addl. SPP for the respondent-State.

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The case of the prosecution in brief is that, the accused is the brother of deceased-Shivappa and brotherin-law of deceased-Channavva. The accused had undergone second marriage with one Rekha and his relation with her was also not cordial. The accused used to quarrel with his second wife, Rekha and also used to manhandle and assault on her. Being frustrated in life, the second wife went and started residing in her parental house. The deceasedShivappa being the own brother of the accused and the deceased-Channavva, sister-in-law of accused went to the house of the parents of the wife of the accused-second wife, Rekha along with elders and brought her back to the house

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and thereafter also the accused quarreled with second wife Rekha and she left the company of the accused. The accused under the impression that both the deceased are coming in his life, he suspected the character of the second wife in pursuance of the intimacy, which she was showing towards Shivappa and in that context on 05.07.2013 at about 6:30 a.m. when the deceased-Shivappa came back from attending nature call, he picked up quarrel and assaulted with axe, by seeing the same when the wife of Shivappa came there, he abused and also assaulted the said Channavva. Because of the said assault committed, both died. On the basis of the complaint, a case was registered and after investigation charge sheet has been filed.

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The learned Magistrate after following the procedure, committed the case to the Sessions Court. The Sessions Court took cognizance, secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was prepared, read over and explained to the accused, the

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accused pleaded not guilty and claimed to be tried and as such, the trial was fixed.

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In order to prove the case of the prosecution, the prosecution got examined 20 witnesses, got marked 24 documents and 18 material objects. Thereafter the statement of the accused was recorded under Section 313 of Cr.P.C. the accused got examined one witness as DW1 and got marked Exs.D1 and D2. After hearing the learned counsel for the accused and the learned Public Prosecutor, the trial Court found that the prosecution has proved the guilt of the accused beyond all reasonable doubt and convicted him and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence of S.I for six months. He has also been convicted and sentenced for six months for the offence under Section 504 of IPC and also he has been convicted and sentenced to undergo S.I. for one year for the offence punishable under Section 506 of IPC.

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It is the submission of the learned counsel for the appellant that the impugned judgment of conviction and order of sentence is not maintainable either in law or on facts of the case and the said judgment is erroneous. It is the further submission that there are so many contradictions and omissions in the evidence of prosecution witnesses, the same has not been properly considered and appreciated by the learned Sessions Judge. It is the further submission that the accused was suffering from schizophrenia and even though the witnesses who have been examined have clearly stated that he was mentally disorder characteristic person and DW1, the Doctor, who examined the accused has also clearly deposed that the accused was suffering from schizophrenia and the benefit of Section 84 of IPC has to be given to the accused. It is the further submission that the accused was not having any intention and his first wife died by consuming poison; the other witnesses, who have been examined by the prosecution, are interested witnesses and nobody was present at the time of the alleged incident. No motive has

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also been specifically made out by the prosecution so as to bring home the guilt of the accused beyond all reasonable doubt. On these grounds, she prayed to allow the appeal and to set aside the judgment of conviction and order of sentence passed by the learned Sessions Judge.

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Per contra, the learned Addl. SPP vehemently argued and submits that PW1, PW5 to PW9 and PW13 are the eyewitnesses to the alleged incident, they have fully supported the case of the prosecution. Nothing has been brought on record so as to discard their evidence. It is his further submission that the person who takes the defense under the general exception especially under Section 84 of IPC, it must be proved by him clearly that at the time of commission of the acts, the accused by reason of unsoundness of mind was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. In the instant case on hand, though the prosecution got examined all witnesses that they have not specifically stated that at that time, the accused was of unsoundness of mind. Though DW1 was got examined, he

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has also not specifically stated with reference to the said fact on the alleged time of incident.

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Looking from any angle, the evidence which has been brought on record is not going to substantiate the case of the accused. In order to substantiate the said contention, he has relied upon the decision of the Hon’ble Supreme Court in the case of Sheralli Wali Mohammed Vs. The State of Maharashtra reported in (1973)4 SCC 79, another decision of the Hon’ble Supreme Court in the case of T.N.Lakshmaiah vs. State of Karnataka reported in (2002)1 SCC 219 and another decision reported in AIR 2011 SC 2816 in the case of Elavarasan Vs. State . It is his further submission that DW1, the Doctor who has deposed before the Court was not a treated Doctor and as such, much importance cannot be given to the evidence of DW1. The trial Court after looking into the materials and evidence placed on record has come to a right conclusion and has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal by confirming the order of the trial Court.

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We have carefully and consciously gone through the submissions made by the learned counsel appearing for the parties. Perused the records including the trial Court records.

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The prosecution in order establish its case got examined 20 witnesses. PW1, PW5 to PW9 and PW13 are the eyewitnesses. In their evidence they have clearly stated with regard to the act of the accused and the manner in which the cross-examination, which has been done by the learned counsel for the accused, it indicates that the alleged incident in question is not disputed and even it is not disputed that the deceased died a homicidal death. The main contention which has been taken up by the learned counsel for the appellant is that the accused was suffering from schizophrenia, the same suggestion has been made to all the eyewitnesses, some of the witnesses have deposed in the cross-examination that the accused was suffering with mental ill-health. The accused got examined DW1, Dr.Manjunath, who was working as Assistant Professor in Oimhans, Dharwad. In his evidence, he has deposed that as

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per the case sheet, the accused was suffering from Schizophrenia and the said disease is a psychotic disease. The characteristics of the deceased delusions, hallucinations, through disturbances, emotional disturbances and behavioral disturbances. The accused was irritable, talking to self, fearfulness, aggressive behavior. The attitude of the accused is quite different from a common man. He has further deposed that schizophrenia is a major mental disorder characterized by disturbance in the cognition, emotion, perception and behavior. This witness has been cross-examined. He deposed that he has not given personal treatment to the accused when the accused referred to their hospital from trial Court. It is further deposed that the accused came to their hospital in the month of May 2013. From November 2012 to till the accused referred to the hospital by the Court, the accused never came to hospital for treatment and during the above said period, he has not given the treatment to the accused.

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It is the main contention of the learned counsel for the appellant that the accused was suffering from

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Schizophrenia and the benefit of Section 84 of IPC has to be given to the accused as he was not having any intention to cause the death of the deceased.

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For the purpose of brevity, we quote Section 84 of IPC, it reads as under:

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“ 84. Act of a person of unsound mind .— 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.”

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On reading of Section 84 of IPC along with the decision in the case of Sheralli Wali Mohammed quoted supra, the Hon’ble Apex Court had an occasion to interpret Section 84 of IPC and it has been held that, to establish the acts done are not offences under Section 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the accused by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. For the purpose of brevity, we quote

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paragraphs 12 and 13 of the judgment in the case Sheralli

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Wali Mohammed, quoted supra, it reads as under:

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“12. To establish that the acts done are not offences under Section 84 of the Indian Penal Code, if must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offences, he was labouring under any such incapacity? On this question, the state of his mind before or after the commission of the offence in relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thakkar v. The State of Gujarat , Subba Rao, J., as he then was, speaking for the Court said :

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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 insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or

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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.”

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13. With this in mind, let us consider the evidence to see whether the accused was in an unsound state of mind at the time of the commission of the acts attributed to him, PW3, one of the brothers of the accused stated that the accused used to become excited and uncontrollable, that sometimes he behaved like a mad man, and that he was treated by Dr.Deshpande and Dr.Malville. PW4, Hyderali, also a brother of the accused, has stated that the accused used to suffer from temporary insanity and that he was treated by Dr.Deshpande and Dr.Malville. The evidence of these two witnesses on the question of the insanity of the accused did not appeal to the trial Court and the Court did not, we think rightly, place any reliance upon it. No attempt was made by the defence to examine the two doctors. There was, therefore, no evidence to show that, at the time of the commission of the acts, the

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accused was not in sound state of mind. On the otherhand, PW8, Rustom Mirja, has stated in his deposition that the accused has been working with him as an additional motor driver for the last 8 or 10 years and that his work and conduct were normal. He also stated that the accused worked with him on March 6, 1968, till 4 p.m. PW16, Dr.Kaloorkar, who examined the accused at 7.20 a.m. on the day of the occurrence, has stated in his deposition that he found that the accused was in normal condition. His evidence has not been challenged in crossexamination.”

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Even in the case of T.N.Lakshmaiah , quoted supra, at praragraph Nos. 8 to 10 it has been observed as under:

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“8. The principle embodied in the chapter is based upon the maxim "actus non facit reum nisi mens sit rea", i.e., an act is not criminal unless there is criminal intent.

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9. Under the Evidence Act, the onus of proving any of the exceptionS mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed

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not because that he proves his case to the hilt but because of the version given by him casts a doubt on the prosecution case.

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10. In State of Madhya Pradesh v. Ahmadulla, this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the Section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act (Illustration a). The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipsi dixit of the accused is not enough for availing of the benefit of the exceptions under chapter IV.”

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Subsequently, it is the trite of the law and it has been reiterated in the case of Elavarasan quoted supra, at paragraph Nos. 25 to 27, it has been observed as under:

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“25. What is important is that the depositions of the two doctors examined as court witnesses during the trial deal with the mental health condition of the appellant at the time of the examination by the doctors and not the commission of the offence which is the relevant point of time for claiming the benefit of Section 84, I.P.C. The medical opinion available on record simply deals with the question whether the appellant is suffering from any disease,

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mental or otherwise that could prevent him from making his defence at the trial. It is true that while determining whether the accused is entitled to the benefit of Section 84, I.P.C. the Court has to consider the circumstances that proceeded, attended or followed the crime but it is equally true that such circumstances must be established by credible evidence. No such evidence has been led in this case. On the contrary expert evidence comprising the deposition and certificates of Dr. Chandrashekhar of JIPMER unequivocally establish that the appellant did not suffer from any medical symptoms that could interfere with his capability of making his defence. There is no evidence suggesting any mental derangement of the appellant at the time of the commission of the crime for neither the wife nor even his mother have in so many words suggested any unsoundness of mind leave alone a mental debility that would prevent him from understanding the nature and consequences of his actions. The doctor, who is alleged to have treated him for insomnia, has also not been examined nor has anyone familiar with the state of his mental health stepped into the witness box to support the plea of insanity. There is no gainsaying that insanity is a medical condition that cannot for long be concealed from friends and relatives of the person concerned. Non-production of anyone who noticed any irrational or eccentric behaviour on the part of the appellant in

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that view is noteworthy. Suffice it to say that the plea of insanity taken by the appellant was neither substantiated nor probablised.

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26. Mr. Mani, as a last ditch attempt relied upon certain observations made in Mahazar Ex.P3 in support of the argument that the appellant was indeed insane at the time of commission of the offences. He submitted that the Mahazar referred to certain writings on the inner walls of the appellant's house which suggested that the appellant was insane. A similar argument was advanced even before the Courts below and was rejected for reasons which we find to be fairly sound and acceptable especially when evidence on record establishes that the appellant was an alcoholic, who could scribble any message or request on the walls of his house while under the influence of alcohol. The Courts below were, therefore, justified in holding that the plea of insanity had not been proved and the burden of proof cast upon the appellant under Section 105 of the Evidence Act remained undischarged. The High Court has also correctly held that the mere fact that the appellant had assaulted his wife, mother and child was not ipso facto suggestive of his being an insane person.

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27. So, also the fact that he had not escaped from the place of occurrence was no reason by itself to declare him to be a person of unsound mind

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incapable of understanding the nature of the acts committed by him. Experience has shown that different individuals react differently to same or similar situations. Some may escape from the scene of occurrence, others may not while some may even walk to the police station to surrender and report about what they have done. Such post event conduct may be relevant to determine the culpability of the offender in the light of other evidence on record, but the conduct of not fleeing from the spot would not in itself show that the person concerned was insane at the time of the commission of the offence.”

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On going through the said decisions one point is very clear that the burden lies on the accused, who claims the benefit of exemption under section 84 of IPC and the accused has to establish that, at the crucial point of time the accused was suffering with schizophrenia or with mental disorder. On close reading of the evidence of DW1 and other witnesses the material fact that, at the time of alleged incident the accused was of unsoundness of mind and has not been clearly and categorically established by bringing cogent and acceptable evidence, when the said fact has not been proved, which has been taken as a defence by the

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accused, then if he fails. Under such circumstances, the case of the prosecution has been established.

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Be that as it may. Even otherwise, if we perused the evidence of eyewitnesses and other circumstantial evidence, they have categorically stated with reference to the accused coming by holding axe and assaulted both the deceased and thereafter he himself has gone and surrendered before the Police and where the axe and clothes of the accused have been seized by drawing mahazar as per Ex.P8 and even the FSL report and other materials which have been produced also substantiate the case of the prosecution.

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Looking from any angle, we are of the considered opinion that the entire evidence which has been produced it clearly points out towards the guilt of the accused alone. Even no case has been made out, why he has been falsely implicated and has been charge sheeted. Though it is contended by the learned counsel for the appellant-accused that there is no motive or no intention to

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cause the death of the deceased, but when there are as many as five eyewitnesses, who have categorically stated, under such circumstances, the motive does not get much importance and in that light the evidence of second wife who has been examined as PW12 that it will not take away the case of the prosecution and even the said witnesses has also not fully supported the case of the prosecution and she has been treated as hostile. Under such circumstances, her evidence is also not come to the benefit of the accused.

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We have carefully and consciously gone through the judgment of the trial Court. The trial Court after considering the evidence and on appreciation of the entire materials on record has come to the right conclusion by convicting the accused for the alleged offences. There are no good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court is liable to be confirmed. Accordingly, the appeal is dismissed as devoid of merits.

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We appreciate the services rendered by the learned counsel Smt.Shashikal L.Desai for having assisted this Court in disposing of the old case. The Legal Service Authority is hereby directed to pay remuneration in accordance with the norms existing therein to the learned counsel for the appellant.

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Sd/JUDGE

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Sd/JUDGE

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Vnp*

Basavaraj S/O Basappa Hosur, v. the State of Karnataka

Case brief

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Basavaraj S/O Basappa Hosur, v. the State of Karnataka

Case brief

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