IN THE HIGH COURT OF SIKKIM AT GANGTOK (Criminal Appeal Jurisdiction) DATED : 06-09-2010 CORAM HON'BLE MR. JUSTICE P. D. DINAl(ARAN, CHIEF JUSTICE AND HONrBLE MR. JUSTICE S. P. WANGD], JUDGE Crl. A. No.02 of 2010 Shri Tshering Lepcha, S/o Late Nimtook Lepcha, R/o Dong Busty, South Sikkim, At present Sikkim State Jail, Rongey, East Sikkim. versus The State of Sikkim For Appellant •.. Appellant ... Respondent Mr. 8. Sharma, Senior Counsel with Mr. J. K. Kharka, Legal Aid Counsel. For Respondent : Mr. J. B. Pradhan, Public prosecutor with Mr. Karma Thinlay Namgyal, Additional Public Prosecutor and Mr. S. K. Chetiri, Assistant Public Prosecutor. I ± E2 £ M I ty I Wan8di. J. By this appeal, the appellant seeks to assail the judgment of the leaned Sessions Judge, South & West Sikkim at Namchi, dated 30-03-2002 passed in Criminal Case no. 17 of 2000, by which the accused/appellant was convicted for offence under Section 302 of the Indian Penal Code (in short "IPC| anL sentenced to undengo imprisonment for life with fine of Rs.10,000/- and in default of payment of fine to undergo further imprisonment for 6 months. ^ 2` The facts of the prosecution case stated in brief are as under:- In the morning of 06-08-2000 at 0615 hrs., the Officer-in- Charge, Temi Police Station, received a written complaint from one Pentok Lepcha, resident of Dong Busty under Niz Ramyang Gram Panchayat, South Sikkim, stating that in the afternoon of 05-08- 2000 at about 3/4 p.in., his brother Tshering Lepcha of the same place, killed his wife Phurmit Lepcha and youngest daughter Sonamit Lepcha with an iron knife. Based on this, Temi Police Station Case no.4(8)2000 dated 06-08-2000 under Section 302 IPC was registered against the accused for the murder of his wife Phurmit Lepcha and daughter Sonamit Lepcha and the case taken up for investigation. 3. As per the prosecution, investigation revealed that in the afternoon of 05-08-2000 at about 3/4 p.in., the accused Tshering L Phurmit Le aged about (3) Sonam deceased p pcha was at home at Dong Busty along with his wife cha and three daughters, namely, (1) Markit Lepcha 8 years, (2) Santimit Lepcha aged about 4 years and Lepcha aged about 11/2 years. In the house, the rsons Phurmit Lepcha and Sonamit Lepcha were lying [` on a bed,.'the accused person on another and the other two daughters playing outside in the verandah. Suddenly, without any provocation, the accused person pulled out his knife from underneath his pillow and struck his wife Phurmit Lepcha from behind upon which she shouted in pain and ran out of the room in panic lifting her child with the accused Tshering Lepcha hotly in her pursuit. As she ran out, Phurmit Lepcha slipped on the steps and fell by which time the accused had caught up with her and struck Eiiiiiil ft her repeatedly with the knife inflicting multiple fatal injuries on her head and body. After having finished with her, the accused then struck his youngest daughter with the same knife inflicting grievous wounds on the head and below the shoulder resulting in the death of the victims instantly. 4. Seeing the gruesome scene that was being enacted, the eldest daughter Markit Lepcha took her younger sister Santimit Lepcha and ran to the house of their grandmother Gonam Lepcha situated about 100 fts. above the house of the accused person and narrated the entire story to her. On hearing of the incident, Gonam Lepcha, the grandmother, sent her daughter Sukmit Lepcha aged about 22 years, to inform her youngest son Pentok Lepcha, the complainant, who at that time was working in the ginger field nearby the house. On hearing of the incident, Pentok Lepcha rushed to the place of occurrence and saw the dead bodies of the victims that lay in front of the house of the accused in a pool of blood. He then raised an alarm crying out as to where the killer was. As he searched for the accused person, he found him about 50/60 fts. below the place of occurrence whereupon he called out the accused person, and ran towards him and caught hold of him. During this time, the complainant noticed the knife (weapon of offence) smeared with fresh blood on the ground near the accused person. The commotion alerted his uncle Mingma Lepcha living about 100 fts. away from the place of occurrence on its Southern side where he arrived and, with his help bound the accused person with a rope and held him in captivity in t:he house of one Passang Lepcha about 100 fts. below the house of the accused. By this time, rest of the villagers and the Panchayat President of the area had also arrived at the place, 5. Later in the evening, the complainant, Pentok Lepcha reported of. the incident to the ln-Charge, Bermiok Police Out Post and returned to his village, The ln-Charge Bermiok Out Post ASI, Sangey Bhutia, reported of the matter to the Officer-in-Charge Temi Police Station by wireless who directed him to proceed to Dong Busty immediately for verification and to take suitable measures. The police personnel reached Dong Busty late in the night, where they spent the night accompanied by other villagers guarding the place of occurrence, the accused person and the dead bodies of the victims. The complainant went to the Temi Police Station early in the morning of the following day and submitted a written complaint regarding the incident based on which case under Section 302 IPC was registered and investigation carried out. 6. On completion of the investigation, the Investigating Ei Officer having found that a pr/.rna fac/.e case under Section 302 IPC had been made out against the accused Tshering Lepcha for committing the murder of his wife Phurmit Lepcha and daughter Sonamit Lepcha, submitted a charge sheet against him for trial. The learned Sessions Judge upon consideration of the materials on record framed charge against the accused person for `having committed the offence and directed that he tried accordingly. The accused person pleaded not guilty to the charge and claimed to be tried. 7` On conclusion of the trial, the accused was found guilty of the offence and by the impugned judgment convicted him accordingly. We find from the records that the fact of the offence having been committed by the appellant, was not seriously contested before the trial Court, there being overwhelming evidence against the accused person to bring home the charge against him. The only substantial point that was raised was that the appellant was entitled to the protection under Section 84 IPC as there were evidence on the record to suggest that he was insane at the time of commission of the offence. 8. The learned trial Court held that the accused attempting to flee from the place of occurrence established that he was aware of the result of his act and tried to get rid himself of the consequences that would follow and, that such conduct was not consistent with that of a person with unsound mind and, therefore, not entitled to the benefit available under Section 84 IPC. 9, In the appeal before us, the very same ground has been raised on behalf of the appellant in challenging the impugned judgment. It has been urged that the learned trial Court failed to consider the following aspects that were quite evident on the face of the record :- a) That no effort was made by the learned trial court to examine as to under what circumstances the incident had taken place and the state of mind of the accused person at the time of commission of the offence; b) That the prosecution witnesses had made categorical statements that the accused was of unsound mind; e c) That the insanity of the accused person had been substantiated by the fact that he had left his house a number of times earlier without any reason`; d) Thata normal person could nothave killed hisown wife and child at a time and that there was no explanation given by the prosecution as to what impelled the appellant to commit the murders; e) That the learned trial Court completely ignored the statement of PW16, Pem Tshering Lepcha, who had stated in his cross-examination that ``it is t:rue that while in fitness of insanity he could not answer it. It is true that I did not ask the accused about the incident" which ought to have led the trial Court to have the accused person medically examined by Psychiatrist. 10. Mr. 8. Sharma, learned senior counsel appearing on OT,, behalf of the accused person, submitted that there was overwhelming evidence in favour of holding that the appellant was of unsound mind and that the trial Court ought to have held that the accused committed the offence in a fit of insanity. To support this contention, Mr. 8. Sharma drew our attention to the various statements of the prosecution witnesses made under Section 161 of the Code of Criminal Procedure, 1973 (in short ``Cr.P.C.''). It was submitted that although Section 161 statement pales into insignificance once depositions are made in the Court, it was permissible to rely upon them to demonstrate before this Court the glaring evidence indicating the unsoundness of mind of the appellant during the period when the offence was committed and that such evidence was not at all taken cognizance of by the learned trial Court when under Section 329 Cr.P.C. there was a duty cast upon it to have sent the accused person for medical examination. Mr. Sharma drew our attention to the following relevant portions of the statements of the various PWs made under Section 161 Cr.P.C.:- _Statement of accused Tshering Le?_cha " ....... My wife said to me that she is not feeling well and so she urged to take lunch immediately so that she could take rest after taking lunch. I then agreed to take lunch and they my wife served lunch to me and she also started taking lunch. After taking lunch, she went towards the room while taking child with her. While she was leaning on the bed feeding milk to the child, I told her that I am also tired and want to sleep for a while. Saying this, I went playfully to another bed and slept there, after some time, I saw that a dangerous dog suddenly came towards me and attacked me and I thought that the dog might bite me. Apprehending this, I took out a knife from beneath my pillow and stabbed the dog, after which that dog went out of the room, crying. I also came outside following the dog while taking the knife. After coming out I saw that instead of dog, my wife was lying in a pool of blood. At that time only, I realised that I have stabbed my wife. „ " Statement of PWI Pentok LeDcha_ `` ....... Before that, my brother had left home for 2/3 .i:.Lies and on searching him, he was found near Damthang and was taken back to the house. At another time, my brother had come to the house himself after 3/4 days. After that till the time of the incident he was staying well at house with his wife and children and had never engaged in quarrelling at home....,, Statement of PW6 Mahendra Gurunq " ........ Before the incident, Tshering had left the house and when left at the first time, his younger brother had brought him back and on next occasion he had himself come back .... " Statement of PW8 Passanq Let)cha (Jetha) `` „„ Tshering Lepcha had appeared to be suffering fr.6.in mental disorder about 5/6 months ago and had left house twice. On one occasion'he was brought back home by his brother after about 3/4 days. Again he left home once and came back house himself...... Statement of PW9 Passana LeDcha f Maila)_ " ... Presently Tshering had become a good person and had not appeared as an insane person. He used to talk, walk and work well. But about 5/6 months ago he left home twice and I had heard that one time he was bound and brought back by his brothers and at another time he himself came back house ..... " Statement of PW10 Sukmlt Lepdla `` ....... I was deeply surprised because brother Tshering and his wife had never engaged in \ quarrelling with each other and further they never used to take alcohol, and talked and worked well. However, he had left house twice and had been missing. At one time after left house, he was found and brought back by his brothers, and at another time he was lost for two three days and at this time, he himself came back to the house .... " Statement of PW15 Passanakit LeE}cha " .... About 5/6 months before, the same, daughter who was killed had told me that the son-in- law had left the house without saying anything and was brought back by his younger brother. He had left the house for the second time also, but this time, he had himself came back and on being asked as to what had happened to him he told that nothing had happened Statement of PWll Gonam LeDcha `` ....., „ ........ I was caught in a deep thought, I thought that what Tshering Lepcha his done. He never used take alcohol and never engaged in quarrelling with any one in the village but how this has happened. Ho`wever, about one year ago, Tshering Lepcha had left house without telling anything to anyone, and his brothers had gone to search him and after 3/4 days, they had found him near Rakam Tar and had brought him back. Again about 5/6 months ago, he had left home in a similar way but this time he had himself come back. When I had asked him as to what had happened to him and what happens to him and whether he suffers from any disease, he replied that nothing has happened to him and that he is alright ..... Statement of PW16 Pen Tsherina Lepcha `` ..„ .... My brother Tshering had left house twice before and at one time I and my younger brother had found him at 10 mile and had brought him back. I heard that again he had left house for second time and that at this time, he had come back himself....." -¢ cfro ]1. Mr. B. Sharma further submitted that the statements of the witnesses under Section 161 Cr.P.C. that clearly evinced the insanity of the appeHant, having been recorded during the investigation, it was incumbent upon the investigating agency also to have got the appellant medically examined by a Psychiatrist. This having not been done, the charge sheet ought to be treated as defective rendering it a nullity in the eye of law. It was the further submission of Mr. Sharma that notwithstanding this position, even at the trial stage, the Court was statutorily obliged to exercise its powers provided under Section 329 Cr.P.C. in view of the glaring evidence before it that unequivocally indicated that the appellant was of unsound mind. The failure to do so, therefore, has resulted in a grave miscarriage of justice. In any case, as per the appellant, when at the trial sufficient evidence of glaring nature of the appellant being of unsound mind at the time of commission of the offence had emerged, he ought to have been given the benefit provided under Section 84 IPC at the end of the trial. ]2. In support of his contention, the learned senior counsel referred to the following decision:- ln the case Of Siddhalpal Kamala Yadav vs. State of Maharashtra : AJR 2009 SC 97 in paragraph 8 of which it had been held as follows:- ``8. under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where d¥d:tc;i::i::::ijifi!i:i§;%e:°;i::ji§r:i§;i;'i::a:ij::§±ii±i:!g:e:td±:ii producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of 10 his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution has not to establish these facts. " [emphasis suppLled] ]3, Next, it was submitted that there was a failure on the part of the Public Prosecutor also in not having brought those materials t:o the notice of the trial Court seeking compliance of Section 329 Cr.P.C. The Public Prosecutor has failed to perform his duty of fair play in the proceedings and proceeded to merely ensure that the appellant was punished. In support of t:his contention, Mr. Sharma placed the decision of Si-dlharfba Vashi.sh[ @ Manu Sharma vs. State (N.C.T. of Delhi ) .. AIR 2010 SC 2352 the relevant portion of which is as under:- iH "76, A public prosecutor is appointed under Section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has observed the role of a prosecutor in Shiv Kumar v. Hukam Chand and Anr., : (1999) 7 SCC 467 as follows: "13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one other than the Public Proseoutor. The legislature reminds the State that the poliey must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not :5::#Tt%ftt:£j#t%##\th%f#.i.2±¥ []][[EEE[§jn=EE[EE=TEEE|[§EraE]ffiitF¥.E]=±[±T.FEEHEEEEitETEE¥EHgEEET#=§j§ :_:=::::i:::::::ii:_::=_:::::-:::=::::::=::::i:-::::i:-:::::: the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accusecl. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledae. A private counsel, if allowed free hand to conduct proseoution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament appliecd 11 a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor." This Court has also held that the Prosecutor does not represent the investigation agencies, but the State. This Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others, (1994) 4 SCC 602 : (AIR J994 SC 2623 .. J994 AJR SCW 3699) held: ``22 .... A public prosecutor is an important officer of the State Govt. and is appointed by the State under the Cr.P.C. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the Investigating Officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation." [Eiiiii±ii±iITi±iTjEiifij|iiijiiifi!H[iiiE:iiEiiEiiEiEjijiiiiiiEiiEfii|iEgiiiiiffliiEifiiEi accused. " [emphasls supplied] y 14. It was submitted that in the present case where the Investigating Officer found that the appellant was pretending to be deranged (unsound) as revealed from the arrest memo and that when a large number of witnesses had made the categorical statements as extracted in the foregoing paragraph 10 of this judgment, it was essential for the Investigating Officer to have got the appellant examined by a medical officer as to the soundness of the mind of the appellant at the stage of the investigation which, obviously has not been done causing grave prejudice to the appellant. Mr. Sharma drew our attention to paragraph 8 of the dedisiion .in the case Of Bapu alias Gujraj Singh vs. State of 12 Ra/.asthan : (2007j 8 Sac 66 in support of his contention which we may reproduce below: ``8. The onus of proving unsoundness of mind is on the accused. But where during the lnvestlgatlon prevlous hlstory of lnsanfty ls ::=::::a±j:datcthr':;t::C;:a::s:b:;t:°::°=f,:#e=:I::i:e:Xtn::±S:i:::::i:::§oi case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. " [emphasis §upplied] V 15. Mr. J. 8. Pradhan, learned Public Prosecutor, submitted that the plea of insanity or unsoundness of mind raised on behalf of the appellant cannot withstand the test of Section 84 IPC and the law laid down by t:he Hon'ble Supreme Court in that behalf. By referring to the lat:ter portion of paragraph 8 in Bapu a//.as Guifraj Singh's case (supra) reproducecl .in the Forego.ir\g paragraph, it was submitted that the appellant had not led any evidence in proof of the plea of insanity during the trial. No such plea was raised by him even in his statement recorded under Section 313 Cr.P.C. As per him, in order to fall within the provisions of Section 84 IPC, it has to be considered by the Court as to whether at the time commission of 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. For this the conduct of the accused during the time of commission of offence and the entire period thereafter until conclusion of his trial would be relevant for the purpose of 13 ascertaining as to whether plea raised was bona fr.de or an afterthought. The statements that have been referred to on behalf of the appellant would, in the submission of Mr. Pradhan, indicate only a mere abnormality of mind or partial delusion and nothing more. Such evidence would not be sufficient to discharge the onus which lies upon the accused person to prove his insanity and be entitled to the benefits under Section 84 IPC. It is further the submission of Mr. Pradhan that in the evidence there are no records of history of unsoundness of mind of the accused person and that the evidence on record rather reflects t:hat he was leading a normal life. ]6. As regards the contention of Mr. a. Sharma that there was a serious infraction alleged to have been committed by the trial Court in not acting in terms of Section 329 Cr.P.C., Mr. Pradhan submitted that the fact that t:he trial Court did not take resort to the said provision would imply that at the commencement and