Ravi @ Ravivarma Jain Vs State of Karnataka

STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE KARKALA CIRCLE REPT. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE - 560 001 … RESPONDENT

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(BY SRI.VIJAYAKUMAR MAJAGE, SPP-II)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION FOR LIFE IMPRISONMENT DATED 28.06.2017, PASSED BY THE PRINCIPAL SESSIONS JUDGE, UDUPI DISTRICT, UDUPI IN S.C.NO.5/2014, CONSEQUENTLY ACQUIT THE APPELLANT (ACCUSED) IN THE INTEREST OF JUTICE.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and

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HON'BLE MR. JUSTICE M.G.S. KAMAL

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HC-KAR

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ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

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Challenging the impugned judgment and order of conviction and sentence passed against him, accused/appellant in S.C.No.05/2014 on the file of Principal Sessions Judge, Udupi (hereinafter referred to as 'the Trial Court') has preferred this appeal.

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Appellant was the sole accused in S.C.No.05/2014 before the trial Court. PWs.1 and 2 are the son and daughter of the deceased, PW3 is the daughter-in-law of the deceased, PW.4 is younger son of the deceased and PW.5 is elder brother of the accused and grandson of the deceased .

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The case of the prosecution is that, the parents of the accused were residing in Belgaum and accused was residing with his grandfather in Renjala Village, Karkala Taluk and studied upto 7^th Standard. Thereafter, for sometime he was residing with his parents in Belgaum and again came back and was staying with his grandfather. Since about 4 years, he was addicted to alcohol and drugs. He was not doing any work and wandered like a wayward. His grandfather used to admonish him to take up some employment. He was demanding his family members for money for his addictions.

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HC-KAR

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On 21.12.2013 at about 08.30 a.m., when the

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accused demanded victim-Nemiraj Poovani to give him some money, again Nemiraj Poovani admonished the accused saying that why is he wandering and can he not take up some work. Enraged by that, the accused picked up MO.1/wooden reaper and assaulted on the head of Nemiraj Poovani. When he fell down again accused picked up MO.2/wooden club and assaulted on his head. When PW2 came to the rescue of the victim, the accused assaulted her also and ran away. The victim and PW.2 were shifted to the hospital. But victim Nemiraj Poovani succumbed to the injuries.

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PW.1 on learning about the incident, came to the hospital and then filed complaint as per Ex.P1 before PW.12ASI of Karkala Rural Police Station. Based on that, PW.12 registered FIR as per Ex.P20, for the offences punishable under Sections 302 and 324 of IPC and handed over the investigation to PW.13 who conducted the investigation and filed charge sheet.

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The trial Court on hearing the accused framed charges against him for the offences punishable under Sections 302 and 324 IPC. As the accused denied the charges, trial was

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conducted. In support of the case of the prosecution, PWs.1 to 14 were examined, Exs.P1 to 30 and MOs.1 to 7 were marked. The accused during trial took up the defence that at the time of the incident he was suffering from mental illness. In support of such defence, he got examined DWs.1 and 2/doctors who had previously treated him and got marked Exs.D1 and D2.

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The trial Court on hearing the parties by the impugned judgment and order held that the charges are proved by the evidence of the injured eyewitness, other witnesses and also the medical evidence. It is further held that the accused has failed to establish his defence that he was suffering from mental illness. Further, the trial Court convicted him for the offences punishable under Section 302 of IPC and sentenced him to undergo life imprisonment and simple imprisonment of one year for the offence punishable under Section 324 of IPC.

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Submissions of Smt.Sohani Holla, learned counsel for the appellant:

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8 (a). The witnesses have admitted that the accused had mental health condition. Further, the evidence of DW1, DW.2 and Ex.D1 and Ex.D2 would show that he was not mentally sound, thereby he had no intention to commit the crime. There

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were contradictions regarding the motive aspect alleged by the prosecution. In the complaint, there is no whisper that the accused assaulted the victim and was demanding money. PWs.1 to 5 speak about that only in the evidence and PW.1’s version was based on the information he received through PW.2. Therefore, the trial Court erred in holding that the charges were proved beyond reasonable doubt. Alternatively, since the accused had previous mental health history and he has already undergone detention since 23.12.2013 for about 12 years, conviction may be altered to the offence punishable under Section 304 Part-II of IPC and sentence may be confined to the period of detention already undergone.

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(b). In support of her submission, she relies on the judgment of the Apex Court in the case of Prakash Nayi Alias Sen Vs. State of Goa¹ .

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Submissions of Sri.Vijayakumar Majage, learned SPP-II;

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DWs.1 and 2 themselves have stated that at the time of the arrest accused had no mental illness. PWs.1 to 5- close relatives of the accused have stated that at the time of commission of the offence, the accused had no mental illness.

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1 (2023) 5 SCC 673

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HC-KAR

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Whatever history was there, that was in the past. Therefore, the defence of mental ill-health of the accused was not established. PW.2/injured eyewitness and PWs.3 to 5/the eye witnesses have categorically stated about the assault on the victim and PW.2 and their evidence was corroborated by the evidence of PWs.1, 6 and 8 and medical evidence. So far as the complaint/Ex.P1, PW.1 was not an eyewitness and he filed the complaint. He not stating in the complaint as an eye-witness is not fatal and is consistent. Hence the appeal shall be dismissed.

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On hearing both side and on examination of the materials on record, the question that arises for consideration is ''Whether the impugned judgment and order of conviction and sentence is sustainable? ''

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ANALYSIS

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The accused did not dispute his relationship with the deceased and PWs.1 to 5. He also did not dispute the fact that he stayed with his grandfather-Nemiraj Poovani i.e., victim, in his house situated at Renjala Village, Karkala Taluk till completion of 7th Standard. So far as the nature of the death, his defence was that the deceased due to his old age

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ailment fell down and suffered accidental injuries. It is not even disputed that the injuries were suffered in the house of the victim.

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The case was based on the evidence of the eyewitnesses. It is settled law that when the case is based on the evidence of the eyewitnesses, that too injured eyewitnesses, the circumstances like motive would take a back seat. As rightly noted by the trial Court, PWs.1 to 5 have categorically stated that the accused was addicted to vices, was not doing any work, used to steal the money and agriculture produce many times and he was pestering the family members for money. They have also stated that Nemiraj Poovani/grandfather of the accused used to admonish him to give up this wayward life and take up some employment. Regarding the incident, they have categorically stated that the accused on the ill-fated day at about 08.30 a.m. came home and demanded Nemiraj Poovani, who was aged about 80 years to give him some money and deceased again admonished the accused about his wayward life and asked him to take up employment. The accused assaulted him with MO.1 and when the victim fell down, he again took up MO.2 and assaulted him.

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When PW.2 went to the rescue of the victim, he assaulted her also and ran away from the scene of offence along with his bag. In their cross-examination, the defence could not impeach their evidence regarding the overt act of the accused.

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Further, the evidence of PW14/Dr. Jayaprakash.K, Professor and HOD of A.J. Hospital, Mangalore shows that on 21.12.2013 at about 10.15 a.m., Nemiraj Poovani and PW.2 were brought to the hospital with history of assault at their residence, on the same day at 08.30 a.m. He has further deposed about the injuries found on Nemiraj Poovani and PW.2. In the cross examination of PW.14, the defence counsel himself has suggested that history was given by PW.4, who is the eyewitness. The above evidence goes to show that, soon after the incident, both the victims were taken to the hospital and history was revealed in consonance with the one stated before the Court. At such a short span of time, there was no scope for manipulation or for false implication of the accused.

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Evidence of PWs.2 to 5 was further corroborated by the evidence of PW.1/complainant and PW.6 and PW.8 who were informed by the eyewitnesses about the incident and mahazar witnesses respectively.

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So far as not mentioning the demand of money in the complaint, admittedly complainant was not the eyewitness and soon after admitting the victim in the hospital the complaint was filed. Even in the complaint, it is stated that whenever the accused came to his grandfather's house, he used to steal arecanut and sell them and used to make galata. But the eyewitness and injured eyewitness have categorically stated about the accused demanding money and incident happening in that background. It is settled law that complaint is not an encyclopedia. In view of the sterling evidence of PWs.2 to 5, non-mentioning of the cause of incident, is not of much consequences.

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In the light of the above discussion, the trial Court was justified in arriving at the conclusion that the accused had assaulted victims Nemiraj Poovani and PW.2, leading to death of said Nemiraj Poovani and grievous injuries to PW.2.

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Then the only question that arises is whether the accused was of unsound mind at the time of the incident. In this regard, the Hon'ble Supreme Court in the case of Sheralli

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Wali Mohammed Vs. State of Maharashtra² , at paragraph

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No.12 of the Judgment has held as follows:

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'' 12. To establish that the acts done are not offences under Section 84 of the Penal Code, 1860, it 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 offence, he was labouring under any such incapacity? On this question, the state of his mind before and after the commission of the offence is relevant . The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thahkar v. State of Gujarat [AIR 1964 SC 1563] : 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 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

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2 2023 (5) SCC 673

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accused on the ground that the general burden of proof resting on the prosecution was not discharged.”

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(emphasis supplied)

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Reading of the above judgment shows that the

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burden of proving the fact that at the time of the commission of the offence the accused was in a state of unsound mind lies on the accused himself.

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It is also pertinent to note that the mental ill-health condition must be only at the relevant point of time and such ill-health if any, much prior or subsequent to commission of offence does not fall under Section 84 of IPC. In the very judgment, it is further held as follows; ''the law presumes that every person of the age of discretion to be sane unless the contrary is proved.''

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It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. The mere fact that no motive has been proved or why the deceased was murdered, would not indicate that he was insane, or he did not have necessary mens rea.

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Similarly, the Hon'ble Supreme Court, in paragraph

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Nos.23 and 24 of the judgment in Elavarasan Vs. State³ has held as under:

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''23. …. the burden of bringing his/her case under Section 84 IPC lies squarely upon the person claiming the benefit of that provision.

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Section 105 of the Evidence Act is in this regard relevant and may be extracted:

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“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 any of the General Exceptions in the Penal Code, 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.”

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(emphasis supplied)

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The burden of proving his/her case under Section

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84 of IPC lies squarely upon the person claiming the benefit of that provision and Section 105 of the Indian Evidence Act, 1872

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requires the accused to prove that his/her case comes under any general or special exceptions to Section 300 of IPC and court shall presume the absence of such circumstances.

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3 AIR 2011 SC 2816

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Further, relying upon the judgment of the Hon’ble

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Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat⁴ , at paragraph No.9 it is held as follows:

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'' 9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.''

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(Emphasis supplied)

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Therefore, the burden of proving the fact that at the time of commission of the offence, he had unsoundness of mind lies on the accused. To prove his defence, he examined DWs.1 and 2 and relied on Exs.D1 and 2. DW.1/Dr.Aruna. G, states that the accused was treated in their hospital for unspecified non-organic psychosis between 27.10.2011 and 23.11.2011 and for the second time between 01.06.2012 and 17.06.2012. In the cross-examination, DW.1 has admitted that the accused was using cannabis and was on alcoholic at the time of the treatment and his psychosis was induced by both those factors.

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4 AIR 1964 SC 1563

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Further, in the cross-examination DW.1 has clearly admitted as follows;

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''It is true that we discharge Ravivarma Jain after he completely cured''.

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DW.2/Dr.Vasudeva S, Psychiatrist of District

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Government Hospital, Udupi deposed that he never examined or treated the accused directly at any point of time. He states that based on the treatment given by NIMHANS Hospital, Bangalore, he prescribed tablets to the accused. In the chiefexamination, though he states that the accused was suffering from undifferentiated schizophrenia, he also states that during the year 2014, accused did not have any serious mental disorder. Thus, the evidence of the accused's own witnesses show that the alleged mental disorder was much prior to the incident. Further, PWs.1 to 5/family members of the accused though admitted the suggestions that the accused was suffering from mental illness, categorically stated that it was four years prior to the incident and at the time of the incident, accused was not suffering from any such mental health disorder. Thus, the accused has failed to discharge the burden that he was a person of unsound mind at the time of the incident. In the light of such facts, the judgment in Prakash

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Nayi’s case referred to supra relied upon by learned counsel for the appellant, in no way advances his case.

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The evidence on record clearly shows that the deceased victim, who is none other than the grandfather of the accused, was aged about 80 years. There was no reason for the accused to use such force against him, if there was no intention of committing murder. Apart from assaulting him, when PW.2 came to his rescue, accused assaulted her also with the same wooden club/MO.2 and caused grievous injuries to her also.

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Therefore, there are no grounds to alter the order of conviction from Section 302 to Section 304 Part-II of IPC. Appeal lacks merit. Hence, the following :

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ORDER

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(i) The appeal is dismissed .

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(ii) Court places on record the appreciation for the able

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assistance rendered by Smt.Sohani Holla, learned panel advocate of High Court Legal Services Committee.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(M.G.S. KAMAL) JUDGE