-:(1):- IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.: 437 OF 2008 *** The State of Maharashtra ..Appellant Versus Govind Mhatarba Shinde, Age 49 years, Resident of Vadgaon Landga, Taluka Sangamner, District Ahmednagar. ..Respondent ... Shri B.J.Sonawane, APP for the appellant and Shri M.A.Tandale. Advocate for the respondent/ appointed. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- RESERVED ON: 27th APRIL, 2010. PRONOUNCED ON: 7th MAY, 2010. JUDGMENT: [Per Deshmukh, J.] 1. The judgment and order of acquittal of the respondent (accused) under section 302 of the Indian Penal Code ("IPC") by the learned Additional Sessions Judge, Sangamner, District Ahmednagar, dated 22nd February, 2008 in Sessions Case No.35 of 2007 is the subject matter of present appeal, filed by the appellant - State. -:(2):- 2. The factual matrix of the prosecution case are ; (A) According to complainant Navnath he resides in the farm house in Gat No.238 of village Vadgaon Landga. His father (accused) suffers from mental disorder since 1996. He was treated therefor. However, accused used to quarrel with his mother (wife of accused) whenever there used to be a mental tension to him. Further according to him, on 12th May, 2007 his elder brother Macchindra had been to village Palaskhed to see the ailing niece. On 13th May, 2007 complainant, along with his wife and daughter had been to the house of maternal uncle at village Hivargaon. At about 8.30 p.m. on the said day, he received a phone call from his friend Ramdas Landge informing that his father had assaulted his mother. Accordingly, complainant and his maternal uncle reached his home in village Vadgaon Landga. On reaching the home, they were informed that his uncle Devidas and others have carried injured mother to hospital. (B) The complainant immediately rushed to the hospital, where he came to know that his mother is no more alive and that his father had assaulted his mother with wooden thrashing rod on her head. (C) On coming back to home, he opened the house -:(3):- and noticed that there was blood in the room so also blood stained thrashing rod was also lying in the room. (D) After post-mortem, funeral was performed. (E) On 14th May, 2007, complainant Navnath lodged a report with Police Station Sangamner against the accused. Based on the said report, police registered C.R.No.153 of 2007 against the accused for the offence punishable under Section 302 of IPC. (F) Pursuant to the registration of crime, Investigating Officer collected necessary papers, recorded statements of witnesses and also collected post mortem report. Accused was arrested. Shirt on the person of accused, having blood stains, was seized under the panchanama. Muddemal property was sent to Chemical Analyser. Map of the spot of incident was got prepared. (G) After completion of the investigation, charge sheet was submitted in the court of the learned Judicial Magistrate (F.C.), Sangamner, who, in turn, the case being exclusively triable by the Court of Sessions, committed the same to the court of learned Additional Sessions Judge, Sangamner. (H) The learned trial Judge framed charge against the accused for the offence under section 302 of IPC. -:(4):- Accused pleaded not guilty to the charge and claimed to be tried. 3. To bring home the guilt to accused, prosecution has examined six witnesses. PW 1 Navnath (Exhibit 12) is the son of accused so also complainant. PW 2 is Babasaheb (Exhibit 14) who arrived at the spot after hearing hue and cry of deceased so also took her to the hospital. PW 3 is Dhondiba (Exhibit 16), who also heard hue and cry of deceased and reached to the house of accused. He saw the accused coming out of the house and that the deceased was lying in the pool of blood. PW 4 is Namdeo - Police Constable (Exhibit 17), who carried to the muddemal articles to the Chemical Analyser. PW 5 is Wasim Pathan, Circle Officer (Exhibit 20), who prepared the map of the spot of incident. PW 6 is Sunil Bacchav, Police Sub Inspector and Investigating Officer (Exhibit 23). 4. The learned trial Judge, after recording statements of prosecution witnesses also recorded statement of the accused under Section 313 of the Code of Criminal Procedure. Defence of the accused was that, he has been falsely implicated in the case, he does not remember anything about the incident and that he is suffering from mental disorder. The learned trial Judge -:(5):- heard both the sides and ultimately by his judgment and order, as said in the preceding paragraph, has acquitted the accused of the offence charged for. The learned trial Judge further ordered that the accused, though acquitted, be set at liberty only after examination by the Civil Surgeon and if Civil Surgeon found it necessary, accused be sent to Mental Hospital for further treatment till his recovery and after recovery, if he is found fit, then be released. 5. We shall, at the out set, consider some of the basics of criminal jurisprudence. General Clauses Act, 1897 has defined "offence" as "shall mean any act or omission made punishable by any law for the time being in force". "Offence" is also defined under section 40 of the Indian Penal Code (IPC, for short). However, it will be noticed that the definition of word "offence" under section 3 (38) of the General Clauses Act, 1897 is wider than the one in section 40 of IPC. Thus, an act or omission made punishable under a special or local law is always an offence for the purposes of the General Clauses Act. Such an act or omission made punishable under a special or local law will be an offence within the meaning of IPC only for the purposes of the provisions enumerated in paragraphs 2 and 3 of section 40 IPC and only to the extent of subject to the limitations mentioned in the above paragraphs. The Criminal Procedure Code, 1973 (Cr.P.C.) section 2 (n) also contains the definition of "offence" and reads as follows: "(n) "offence" means any act or omission made punishable by any law for the time being in force and -:(6):- includes any act in respect of which a complaint may be made under section 20 of the Cattle-tresspass Act, 1871. Thus, the definition of "offence" in the Cr.P.C. is wider than that in the General Clauses Act as well as in the IPC. However, the definition in the Cr.P.C. is only applicable for the purpose of that Code and is not applicable to the IPC. It is fundamental principal that what constitutes crime is essentially a matter of statute law. Word "crime' is not defined precisely in the penal Code. A crime has to be distinguished from a tort or a civil wrong. The distinction consists in the nature of the sanction that is attached to each form of liability. In the case of a crime, the sanction is in the form of punishment while in the case of a tort or a civil wrong the sanction is in the form of damages or compensation to the person injured. Primarily, the purpose of punishment is deterrence. The purpose of compensation, however, is recompense. Halsbury writes :- "There is no satisfactory definition of crime which will embrace the many acts and omissions which are crimunal, and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong, which affects the security or well being of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to -:(7):- conduct, which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question. In the theory of law, crime is essentially a wrong done to the public or to the society at large, while a civil wrong is a wrong done to a private individual. In the case of crime, therefore, the remedy is prosecution by the State, though such prosecution may be started at the stance of the injured individual. In some cases injured individual may be necessary to the prosecution. In the case of a civil wrong, the State has no concern. The injured person may seek his remedy by way of a suit for damages. 6. We may notice Chapter-IV of the Indian Penal Code. It is titled as "General Exceptions". This chapter starts from section 76 and ends at section 106. Thus, General Exceptions have been detailed in this Chapter IV of the IPC. A cursory look to Chapter IV, the General Exceptions, makes is clear that the whole principle embodied in different provisions/ sections of this Chapter may be stated to be expressed in the maxim "actus non facit reum nisi mens sit rea", i.e., an act is not criminal unless the mind too is -:(8):- criminal. 7. On behalf of the accused, plea raised is of insanity. Such plea is available under section 84 IPC which reads: "S. 84. 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." This section itself says that nothing is an offence which is done 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 essential elements of section 84 are as follows: (i) The accused must, at the time of commission of the act be of unsound mind; (ii) The unsoundness must be such as to make the accused at the time when he is doing the act charged as offence, incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. We have also noticed the distinction in the legal insanity and medical insanity. Legal insanity is contemplated under section 84 of IPC. 8. On behalf of the Appellant/ State reliance is placed on judgment of the Honourable Supreme Court in the matter of "Dharmendra Sinh @ Mansinh Ratansinh V/s State of -:(9):- Gujarat" reported in 2002 Cri.L.J. 2631. On the facts brought before the Court, the Honourable Supreme Court held that no conclusion can be drawn from the statement of witnesses that accused was suffering from any mental illness. Facts in that case have been stated by the Honourable Supreme Court in para 3 of the reported judgment. We have seen para No.15 of the reported judgment. Another judgment relied on behalf of the prosecution is the judgment of learned Division Bench of this Court reported in 2003 All MR (Cri.) 964. Here, this Court, on the background of the facts, has held that guilt of the accused is proved by the medical evidence. Absence of motive - not material, false explanation of the accused is also considered by this Court while arriving at a conclusion of conviction and sentence by dismissing the appeal filed by the Appellant/ accused. Learned A.P.P. also relied on a judgment of Honourable Supreme Court in the matter of "Satnibai V/s State of M.P." reported in 2010 (2) SCC 646. It was a case based on circumstantial evidence. Principle for basing conviction solely on circumstantial evidence have been reinstated. We have noticed that there was no plea under section 84 of IPC raised on behalf of the Appellant/ accused in the matter of Satnibai (supra). This judgment, in -:(10):- our opinion, is not relevant. Learned A.P.P. has also referred to Chapter 27 of the Cr.P.C. to contend that the procedure laid down under section 27 Cr.P.C. was not followed since accused was not insane at the time of commission of offence. According to learned counsel for Respondent/ accused, judgment of the trial Court is based on the material brought on record. Plea of the accused has been considered within the parameters of section 84 of the IPC and accused has been justifiably acquitted of the offence under punishable section 302. 8. It is apposite to rely on a judgment of Honourable Supreme Court [three judge bench] in the matter of "Vijayee Singh and others V/s State of U.P." reported in AIR 1990 SC 1459. We have seen the facts which are listed by the Honourable Supreme Court in para 1 of the report. In para 15, the Honourable Supreme Court has considered the phrase "burden of proof". It is held that said phrase is not defined in the Act. It has been further held that in respect of criminal cases, it is accepted principle of Criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the -:(11):- benefit of every reasonable doubt. In this para, section 105 of the Evidence Act is also considered and interpreted by the Honourable Supreme Court. This reported judgment reveals that Honourable Supreme Court has taken survey of earlier judgments and it has been held in para 33 that the general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of cases covered by section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and the circumstances obtaining in the case. He may adduce evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstance by way of cross examination and also rely on the probabilities and the other circumstances. The initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea, gets displaced and on examination of the material even a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under section 105 by preponderance of probabilities in favour of his plea. In case of general -:(12):- exceptions, special exceptions, proviso contained in the penal Code or in any law defining the offence, the Court, after due consideration of the evidence, in the light of the above principle, if satisfied, would state in the first instance as to the exceptions the accused is entitled, then see whether he would be entitled for complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly. 9. We have seen Chapter No.XXV of Cr.P.C., pointed out to us by learned A.P.P. This chapter starts from section 328 and ends at section 339. We have appreciated the distinction of defence raised under section 84 of Penal Code and Chapter No.25 of Cr.P.C.If plea of insanity is raised by the accused, it is the duty of the prosecution to subject the accused to a medical examination immediately. This is important, because if it is revealed, during the course of investigation that the accused was suffering from mental disease, the prosecution is further duty bound to place before the Court all the evidence that could be available to show that the accused was in a proper state of mind when he committed the alleged offence. This is to rule out the plea of mental disease or insanity that may likely to be raised at the trial. The failure of the prosecution to do so -:(13):- creates serious infirmity in the prosecution case of murder. In case of failure on the part of the prosecution, it may entitle the accused to seek benefit of doubt. The case of the State before the trial Court is being represented by the Public Prosecutor. The Public Prosecutor is not supposed to seek conviction by hook or by crook. Needless to say, the Public Prosecutor is officer of the Court. His first and foremost duty to the Court is to place the entire material before the Court on behalf of the prosecution. He must be truthful and honest [State of Bihar V/s Ram Naresh - AIR 1957 SC 389]. We may notice, in the case on hand, first informant i.e. P.W.1 Navnath lodged report Exhibit-13. In this first information report itself, contention is raised with reference to alleged mental disease of the accused. First information report sets the criminal law in motion. We have considered evidence of P.W.2 Babasaheb and P.W.3 Dhondiba. These two witnesses are also referring to mental illness of the accused. This is the background which persuade us for such observations, in the case on hand. We have also noticed that the date of occurrence, date of lodging of the report and date of arrest of the accused is 17th May, 2007. In our opinion, with this span of time, the accused has no opportunity to establish his state of mind at -:(14):- the time of commission of offence. As noticed by us, there is no material on record to show that investigating officials had caused medical examination of the accused and/ or state of mind of the accused. 10. After giving due consideration to the submissions of the learned counsel for the parties, we may list the circumstances/ reasons persuading the Court for giving benefit of doubt to the accused: (i) The first information report (Exhibit-13) suggests that the accused was suffering from mental illness since 1996. In fact, this is positive evidence of P.W.1 Navnath and according to him the accused was treated for that mental illness. (ii) There is no motive alleged, nor evidence brought on record for motive, by the prosecution. (iii) There is no evidence of preparation of commission of crime, brought on record by the prosecution. (iv) The accused has been arrested on 17th May, 2007 vide Arrest Panchanama Exhibit-15. Curiously, this Panchanama records that accused had worn the shirt which was on his person at the time of commission of crime, on 13th May, 2007. There is no attempt on the part of the accused to change the alleged bloodstained shirt. -:(15):- According to the prosecution, arrest of the accused was caused by P.W.6 Mr. Bachhav. He claims that accused was arrested under Panchanama Exhibit-15. Under the same Panchanama, shirt on the person of the accused was also seized. (v) There are two reports of the Serologist on record. Communication dated 13th September, 2007 is addressed to Medical Officer, Cottage Hospital, Sangamner. Blood of deceased, according to this communication, was of "B" group. This was blood of deceased Mirabai which was sent for analysis. We have also considered another report of the Chemical Analyser, which is on record. Around eight articles/ exhibits were sent for examination, including incriminating article/ weapon i.e. the wooden batton/ rod, full shirt allegedly worm by the accused at the time of commission of crime. Sari found on the person of deceased was stained with blood of "B" group i.e. her own blood. Blouse, which was on the person of deceased, was also stained with blood of "B" group i.e the blood of deceased. Report, on the point of bloodstain found on the full shirt of the accused Exhibit-6 is material. According to the prosecution bloodstained was found on the shirt worn by the accused at the time of commission of crime. On -:(16):- examination Serologist has reported, by this report dated 13th September, 2009, that there was no blood detected on full shirt allegedly worn by the accused at the time of commission of offence, seized under Panchanama Exhibit-15. This has ungirded the claim of the prosecution that the shirt worn by the accused at the time of commission of the offence was stained with blood (probably the blood of deceased). 11. Learned counsel for the accused disputed the homicidal death. According to him, postmortem report was tendered under section 294 of the Cr.P.C. and no objection has been given on behalf of the accused in the trial Court. The trial Court, therefore, did exhibit said postmortem report which is on record. This has been read in evidence by the trial Court. Counsel for the accused would submit that this is illegal. Medical Officer is not examined. This document could not have been read in evidence by the trial Court. The learned counsel for the accused, for this proposition, relied on a judgment of Honourable Supreme Court in the matter of "Mohanlal Shamji Soni V/s Union of India and another" reported in AIR 1991 SC 1346. Para 10 is pointed out to us. Section 540 of Cr.P.C. (5 of 1898) was considered by the Honourable Supreme Court. -:(17):- Now, it is section 311 of Cr.P.C., 1973. The Honourable Supreme Court held that the Court by exercising its discretionary authority at any stage of inquiry, tril or other proceeding, can summon any person as a witness or examine any person in attendance though not submitted as a witness to be called. According to the learned counsel for the accused, prosecution did not examine the medical officer to prove postmortem report, neither the trial Court resorted to section 311, therefore, homicidal death of Mirabai is not established. 12. We have seen the Inquest Panchanama which is duly established by examining Panch witness and also P.W.6 investigating officer. It is true that the prosecution ought to have examined the medical officer for proving the postmortem notes. Proof of contents of the postmortem report is possible only by examining the author thereof i.e. the medical officer which carried out the postmortem. This report could be established in accordance with the scheme of the Evidence Act. In the absence of such evidence, the postmortem report could not have been read. However, we are not giving much importance to this aspect of the matter for the reason that the Inquest Panchanama is on record, duly established, proving the fact of unnatural death of -:(18):- deceased Mirabai. 13. We have given due consideration to the submissions of learned counsel for the parties. This is an appeal against acquittal filed by the State under section 378 of the Cr.P. C. This Court being appellate Court, has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power [Ram Singh @ Chhaju V/s State of Himachal Pradesh" reported in 2010 (1) Supreme 486]. From this view point, we have seen the entire evidence, have given thoughtful consideration to the submissions of the learned counsel for the parties. We have also noticed statement of the accused recorded under section 313 of the Cr.P.C. It is settled legal position that if the trial Court's view is a possible or plausible view, the Appellate Court or High Court would not be justified in interfering with it (Darshan Singh V/s State of Punjab and another - reported in 2010 (1) Supreme 138.). 14. In our view, the appeal filed on behalf of the State is merit-less. We are upholding the judgment of acquittal rendered by the trial Court for the offence punishable under section 302 of IPC. -:(19):- 15. The Criminal Appeal stands dismissed. In view of earlier order passed at the time of admission of the appeal, accused has furnished bail bonds. Said bail bond stands cancelled. 16. We quantify Rs.3,000/- towards fees to be paid to the learned counsel appointed for the accused/ respondent. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:04/05/2010. ans/437 -:(20):- CRIMINAL APPEAL NO.: 437 OF 2008 Date of decision: 7th MAY, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B.