2. Facts in brief as are necessary for the decision of this Appeal may briefly be stated thus :P.W.8 - PSI Dattatraya Falle who on 24 November 2005 was attached to Nigdi Police Station and was on night duty received information about admission of Vidya in the YCM Hospital with history of assault.P.W.8 - PSI Falle accordingly proceeded to the hospital.On reaching the Hospital, he learnt that Vidya had succumbed to her injuries.ORAL JUDGMENT (PER P.V. HARDAS, J.) :The Appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.500/-, in default of which to undergo simple imprisonment for three months, by the Sessions Judge, Pune, by judgment dated 28 April 2009, in Sessions Case No.276 of 2006, by this Appeal questions the correctness of his conviction and sentence.::: Downloaded on - 29/03/2014 18:56:49 :::On the basis of the report of P.W.1 - Anandrao an offence vide Crime No.451 of 2005 was registered.Upon registration of the offence, the crime was investigated initially by P.W.8 - PSI Falle.The dead body was referred for postmortem examination.::: Downloaded on - 29/03/2014 18:56:49 :::The accused was examined by P.W.7 Dr. Arvind Patil, who noticed the following external injuries :i) Lineal abrasion over left side of forehead at half line tapering upward oblique 3 cm in length.Nape of neck horizontal 8 cm in length tapering towards left, left leg upper third vertical 8 cm in length tapering downwards, semi solid jelly like discharge present on the edge of injury.ii) Small abrasion over right scapular region four in numbers of 3 cm x 3 cm size, on left scapular region three in number 3 cm x 3 cm size with thick serious discharge.iii) Abrasion over left hand extensor aspect 0.5 cm x 0.5 cm."He opined that the age of the injury was within 12 to 25 hours and the injuries may have been caused by a pointed object.The other injuries were due to hard and blunt object.The investigation of the said crime was thereafter transferred to P.W.9 - PI Eknath Patil, who was also attached to Nigdi Police Station.He recorded the statement of the children of the deceased as well as the statements of other witnesses.During custodial interrogation, the Appellant expressed his willingness to point out ::: Downloaded on - 29/03/2014 18:56:49 ::: PNP 4/19 APEAL719-13.3 the place where the weapon had been concealed.The accused led the police and the panchas to a place called Mahadu Gavade chawl and after alighting from the vehicle, produced the weapon which had been concealed beneath the tree.Further to the completion of investigation a charge-sheet against the Appellant was filed.::: Downloaded on - 29/03/2014 18:56:49 :::The postmortem on the body of deceased Vidya was performed by P.W.6 - Dr. Bal Ughade.P.W.6 Dr. Ughade noticed the following external injuries :1. Contusion over right knee joint 1 cm circular in shape.Multiple abrasion over left knee joint.CLW right middle finger at nail bed."The doctor also noticed following injuries over scalp.1. CLW over left eyebrow horizontal 3 x ½ cm.2. CLW over right frontal bone oblique 2 cm x ½ cm.CLW right frontal bone immediately left to injury No.2 4 x 1 cm.CLW right frontal immediately left to injury No.3, 3.5 x 1 cm oblique.CLW frontal bone 2.5 cm horizontal.CLW frontal bone left side near to injury no.5 oblique 4 x 2 cm.CLW parietal bone left side near to injury no.6, 5.5 x 2 cm.CLW parietal, bone left side, lateral to injury no.7 vertical 3 x 1.5 cm.::: Downloaded on - 29/03/2014 18:56:49 :::PNP 5/19 APEAL719-13.3CLW parietal bone left side above left eyebrow oblique 3 x 1 cmCLW left parietal bone, oblique 4 x 2 cmCLW left parietal bone, oblique 4 x 2 cmCLW left parietal bone, oblique 3 x 1 cm, Injury Nos. 10 to 12 were 7 cm over left ear.Left temporal bone horizontal 4.5 x 1 cmImmediately near to injury No.13, 4 x 1 cm oblique.At occipital bone lambdoid point 6 x ½ cmLateral to injury no.15 vertical 5 x 1 cmLateral to injury no.15 right side 5 x ½ cmat parietal right side, horizontal 7 x 14 cm."He opined that injuries 1 to 18 were noticed like incised injuries and were bone deep.On external examination he had noticed fracture of the skull from bone 1.5 cm long on the left side and on the right side 18 cm long.He has opined that all the injuries were ante-mortem.He further opined that the cause of death was due to head injury with fracture to skull with multiple injuries over scalp and intra cranial bleeding.On committal of the case to the Court of Sessions, the Trial Court vide Exhibit 2 framed charge against the Appellant for an offence punishable under Section 302 of the Indian Penal Code.The Appellant denied his guilt and claimed to be tried.The prosecution in support of its case examined nine witnesses.The accused in his defence examined four witnesses.The Trial Court upon appreciation of the evidence ::: Downloaded on - 29/03/2014 18:56:49 ::: PNP 6/19 APEAL719-13.3 convicted and sentenced the Appellant as afore stated.::: Downloaded on - 29/03/2014 18:56:49 :::Mr. Kotwal, learned counsel appearing for the Appellant at the outset has urged before us that the only submission which is being advanced before us in the present Appeal on behalf of the Appellant is that the Appellant is entitled to be given the benefit of Section 84 of the Indian Penal Code on the ground that the Appellant has probablised that the offence was committed by the Appellant when he was suffering from mental illness and was thus incapable of knowing the nature of the act which he was committing.The learned Additional Public Prosecutor has opposed the aforesaid submission.In order to effectively deal with submissions advanced before us by learned counsel appearing for the parties, it would be useful to refer to the evidence of the prosecution witnesses.Prosecution has examined P.W.1 Anandrao, father of deceased Vidya and P.W.2 - Udhav - brother of deceased Vidya.These two witnesses have deposed that Vidya used to complain them that the Appellant had illicit relations with another lady and on that count there used to be quarrels in between Vidya and the Appellant and the Appellant used to assault Vidya.Prosecution has examined P.W.4 Viraj Kate, son ::: Downloaded on - 29/03/2014 18:56:49 ::: PNP 7/19 APEAL719-13.3 of the Appellant who is an eye witness to the incident.He was sleeping in the house where he was residing along with the Appellant and his deceased mother and his sister Manali.According to him, he had awakened from sleep on hearing the cry of his mother.He noticed the Appellant assaulting deceased Vidya with an object which was used for breaking the coconut i.e. scythe.The Appellant had assaulted the deceased on her head and on her neck.P.W. 4 -Viraj further deposes that his sister Manali had called his maternal uncle i.e. P.W.2 Udhav.::: Downloaded on - 29/03/2014 18:56:49 :::Thereafter the Appellant had taken them to the house of his sister i.e. aunt.P.W.4 - Viraj in his cross examination has admitted that prior to the incident, the Appellant was taken by the deceased and D.W.3 - Pushpa to the hospital for treatment.He has further admitted that the Appellant used to take some medicine.He has further admitted that his father during that period used to leave the house and be away from the house for two to three days.He has further admitted that the Appellant used to abuse, but after taking the medicines used to sleep.He has further admitted that when the Appellant was mentally ill, the Appellant would not go on his handcart, but would remain in the house.He has admitted that the Appellant had closed the door from outside ::: Downloaded on - 29/03/2014 18:56:49 ::: PNP 8/19 APEAL719-13.3 and had called D.W.3 - Pushpa to the house.The Appellant had thereafter opened the door and had taken P.W.4 - Viraj and Manali to the house of D.W.3 - Pushpa.An omission has been elicited that he had not stated in his previous statement about the Appellant assaulting deceased Vidya on her back.He has admitted not to have stated in his previous statement about his sister Manali telephoning P.W.2 Udhav.Similarly an omission has been elicited in his previous statement that Manali was studying in second standard in C.K.Goyal School.He has denied all suggestions made on behalf of the Appellant that he had not witnesses the incident.::: Downloaded on - 29/03/2014 18:56:49 :::Thus, a perusal of the evidence of the eye witness establishes beyond reasonable doubt that it was the Appellant who had inflicted injuries to deceased Vidya which had resulted in her death.::: Downloaded on - 29/03/2014 18:56:49 :::PNP 9/19 APEAL719-13.3 of the Indian Penal Code, is not as heavy as the burden which rests on the prosecution and the accused can discharge the said burden by preponderance of probability.This witness has produced the documents which he was called upon to produce.He has only produced the documents of the hospital run by Lokmanya Medical Foundation.The Appellant has examined D.W.2 - Dr. Bharat Sarode who deposes that from 1997 till 2007 he was attached to the Medical Hospital at Yerawada, Pune and was also having his private practice at Pimpri.As per his report at Exhibit 78 he had found that the accused had history suggestive of brief reactive psychosis.He had infidelity delusion and also delusion of persecution.He had therefore opined that the accused had acute psychotic episode.Accordingly certain medicines were prescribed ::: Downloaded on - 29/03/2014 18:56:50 ::: PNP 10/19 APEAL719-13.3 and a review was advised.He had recorded the finding that the accused was 35 years old and was married having two children.The accused had earlier worked as a priest in the temple.For the last five to six months he had persecution delusion and delusion of infidelity, hallucination and was lacking insight.His judgment was impaired.He therefore diagnosed the case as paranoid schizophrenia.He had accordingly advised the treatment which is recorded as "B" and which is part of record as Exhibit::: Downloaded on - 29/03/2014 18:56:50 :::Further review was advised on the following Saturday.He has further deposed that after the accused was examined on 5 December 2001 the accused was discharged from the hospital, but later had come to his personal O.P.D. on five to six occasions.He has further deposed that he has examined the accused in the Yerwada Prison, but was unable to produce the record.In the cross examination, he has admitted as correct that the case papers disclosed an entry dated 2 December 2001 where the Appellant ::: Downloaded on - 29/03/2014 18:56:50 ::: PNP 11/19 APEAL719-13.3 was examined by another doctor who had opined that the patient was conscious and oriented.He has admitted that CNS means Central Nervous System.He has further admitted that even if that CNS findings are normal, a patient can be psychologically disturbed.He has also admitted as correct that on 3 December 2001 before the Appellant was examined by him, another doctor had found that the general condition of the Appellant to be stable and that he was conscious and oriented.He has admitted that he had not written the paternal or the maternal history of mental illness of the Appellant.He has also admitted that when the Appellant was discharged, it was recorded that he was conscious and oriented and there were no complaints.::: Downloaded on - 29/03/2014 18:56:50 :::The Appellant has examined D.W.4 - Dr. Chandrashekhar Bhonde, who deposes that he was also posted at Yerawada Jail as a Psychiatrist.He has admitted that he had examined the Appellant and had found that it was a case of acute psychosis and the Appellant was kept under observation.Certain medicines were also prescribed for the Appellant.He has then deposed that on 14 February 2006 he had advised that the Appellant be discharged.He has further admitted that the Appellant was ::: Downloaded on - 29/03/2014 18:56:50 ::: PNP 12/19 APEAL719-13.3 under his treatment from 24 January 2006 and was responding to his treatment and his condition had improved.The Appellant had again come to him on 2 March 2006 and had declared that he did not want to take treatment from P.W.4 - Dr. Bhonde.Accordingly the treatment was discontinued.Dr. Bhonde has further deposed that on 24 April 2006 he had examined the accused and his status examination was within normal limits.He has admitted that he had not prescribed any medicine, but had prescribed medicinal diet.Similarly, he had examined the Appellant again on 26 May 2006, 1 August 2006 and 29 August 2006 and the result was the same.Subsequently also he had kept the accused under observation, but had opined that the accused be discharged.::: Downloaded on - 29/03/2014 18:56:50 :::In cross examination he has admitted that when he had examined the Appellant on 27 January 2006, he has observed that the Appellant was quiet and there was no psycho motor excitement.His thoughts were relevant and coherent.Similarly, he has admitted that on 14 February 2006 the condition of the Appellant was much better.Similar was the observation when the Appellant was examined on 22 February 2006 and on subsequent dates.He has admitted that he had found the Appellant to have adequate insight and that the Appellant was mentally fit ::: Downloaded on - 29/03/2014 18:56:50 ::: PNP 13/19 APEAL719-13.3 and was of sound mind and free from symptoms of mental illness.::: Downloaded on - 29/03/2014 18:56:50 :::The Appellant has examined D.W.3 - Pushpa - sister of the Appellant who deposes that in 2001 the Appellant was afflicted by mental illness and used to assault, abuse and throw articles in his room.Once the Appellant had torn a currency note.She claims that the Appellant was under the treatment of Dr. Sarode for four to five years.She claims that the Appellant in a fit of insanity had assaulted her son as well as the neighbour.She further deposed that on 24 November 2005 deceased Vidya had come to her and complained her that the Appellant was behaving like a "mad person" and needed to be taken to the hospital.She corrected herself to state that Vidya had come in the morning prior to the night of incident.According to her on that day the Appellant had thrown articles out of the house.According to her the Appellant was then placed in an auto-rickshaw and then taken to Dr. Sarode, but unfortunately Dr. Sarode was not available.She has further deposed that at about 3 to 3.30 a.m. the Appellant had come to his house along with his children and the Appellant appeared to be frightened. D.W.3- Pushpa further deposed that she took the Appellant to his house and took Vidya to the YCM Hospital.At the YCM Hospital the medical officer ::: Downloaded on - 29/03/2014 18:56:50 ::: PNP 14/19 APEAL719-13.3 pronounced Vidya as dead.D.W.3 - Pushpa then claims that her brother Balu is also receiving similar treatment from Dr. Sarode.Incidentally we may state that there is no evidence on record that the brother of the Appellant also is being treated for any mental ailment.::: Downloaded on - 29/03/2014 18:56:50 :::The appellant has a family history - his father was suffering from psychiatric illness.Cause of ailment not known - heredity plays a part.The appellant was being treated for unsoundness of mind since 1992 - diagnosed as suffering from paranoid schizophrenia.Within a short span, soon after the incident from 27-6-1994 to 5-12-1994, he had to be taken for treatment of the ailment 25 times to hospital.The appellant was under regular treatment for the mental ailment.The weak motive of killing of the wife - being that she was opposing the idea of the appellant resigning the job of a police constable.Killing in daylight - no attempt to hide or run away."::: Downloaded on - 29/03/2014 18:56:50 :::PNP 15/19 APEAL719-13.3The Supreme Court upon appreciation of the material at paragraphs 26 and 27 has concluded thus :This oral and documentary evidence clearly shows that the respondent was suffering from epileptic attacks just prior to the incident.Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own family members.After committing the crime, he was arrested by the police and even thereafter, he was treated for insanity, while in jail.Thus, there is evidence to show continuous mental sickness of the respondent.Though the High Court has not discussed this evidence in great detail, but this being an admissible piece of evidence, can always be relied upon to substantiate the conclusion and findings recorded by the High Court."Learned counsel for the Appellant has referred to the unreported judgment of the Division Bench of this Court in Criminal Appeal 1507 of 2004 dated 6 December 2013 in Ayub Murtaza Pirjade v. The State of Maharashtra.The Division Bench found that the Appellant had been admitted in the hospital almost for a year and was under regular follow up treatment.The Division Bench also found that the Appellant was under treatment even during the pendency of the Appeal.::: Downloaded on - 29/03/2014 18:56:50 :::PNP 16/19 APEAL719-13.3 Medical Officer at the time of hearing of the Appeal also indicated that the Appellant lacked insight and his judgment was impaired.The Division Bench therefore concluded that in the light of the nature of the evidence which was tendered in that case, the Appellant was entitled to be given the benefit under Section 84 of the Indian Penal Code.Learned counsel for the Appellant has further relied on the judgment of the Division Bench of this Court in Criminal Appeal 886 of 2005 dated 3 January 2013 in Ravindra Govind Gawas v. The State of Maharashtra.The Division Bench of this Court at paragraph 12 had noticed the following circumstances which warranted the extending of the benefit to the accused under Section 84 :i. the appellant had a history of psychiatric illness, ii.he was admitted in the Government Mental Hospital for more than 5 months, iii.his mental illness was to such an extent that he was given 11 electric shocks in addition to other treatment, iv.after killing his wife, he made no attempt to hide or run away but he stood there at the spot from 12.30 noon till 9.30 p.m."In the present case, the Appellant has not been able to establish the history of mental ailment or psychiatric illness in the family.The Appellant has not been able to establish the hereditary aspect of the mental illness.::: Downloaded on - 29/03/2014 18:56:50 :::PNP 17/19 APEAL719-13.3 Though D.W.3 -Pushpa has claimed that her brother i.e. the brother of the Appellant was also undergoing similar treatment, yet no papers had been produced by the Appellant to establish this fact.A vain attempt has been made by the Appellant in the examination of D.W.3 - Pushpa.The case against the Appellant rests on the ocular testimony of the eyewitness.::: Downloaded on - 29/03/2014 18:56:50 :::However, in the present case P.W.1 Anandrao has clearly deposed that the Appellant had illicit relations and on that score there were quarrels between the Appellant and the deceased.The Investigating Officer in all fairness has admitted that he could not collect any evidence about the illicit relations.Be that as it may, the incident had occurred in the wee hours of the morning.The reason as to why the Appellant assaulted the deceased would remain locked in the impregnable vaults of the mind of the Appellant.There obviously must have been some quarrel before the incident and quarrel had preceded the incident.The Appellant had mercilessly assaulted the deceased and had inflicted several injuries by an iron rod.There is obviously no evidence about mental insanity preceding the incident, nor is there any evidence about the behaviour of the Appellant which would lead to a reasonable inference about the mental illness of the Appellant.Nor is there any evidence of behaviour post the incident which would lead the Court to infer about the mental illness of the Appellant.In short there is no evidence that at the time of committing the act, the Appellant was incapable of knowing the nature of the act which he was committing.::: Downloaded on - 29/03/2014 18:56:50 :::PNP 19/19 APEAL719-13.3(P. V. Hardas, J.) (A.S. Gadkari, J.) ::: Downloaded on - 29/03/2014 18:56:50 :::::: Downloaded on - 29/03/2014 18:56:50 :::

Sections cited: Section 302 in The Indian Penal Code