1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.373 OF 2008 Gelsing Pida Pawar, Age 47 years, Occ. Nil, R/o. Lasur, Tq. Chopada, District Jalgaon. ... APPELLANT. (Original Accused). Versus The State of Maharashtra. ... RESPONDENT. ... Mr. R.L. Kute, Advocate for the appellant Mr. V.D. Godbharle, A.P.P. for respondent ... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. JUDGMENT RESERVED ON: 08.06.2010. JUDGMENT PRONOUNCED ON: 15.06.2010. JUDGMENT (Per Shinde, J.):- 1 The appellant has preferred this appeal challenging the judgment and order dated 22.2.2008 passed by the learned Ad hoc Additional Sessions Judge, Amalner in Sessions Case No. 13 of 2006, thereby convicting the appellant for the offence 2 punishable under Sections 302 of I.P.C. and sentencing him to suffer imprisonment for life and also to pay fine of Rs.1000/-, in default, to suffer R.I. for three months. The appellant was also convicted under Section 324 of I.P.C. and sentenced to suffer R.I. for two years and to pay fine of Rs. 500/-, in default, to suffer R.I. for three months. It was directed that both the sentences shall run concurrently. 2 The prosecution story, in brief, is as under;- P.W.1 Sumanbai is wife of appellant. At the relevant time of incident, P.W.1 Sumanbai was residing alongwith the appellant at Lasur. P.W.6 Suresh is one of the sons of appellant and P.W.1 Sumanbai. Deceased Bahela was the maternal uncle of P.W.1 Sumanbai and witness Gangaram is the cousin of P.W.1 Sumanbai. On 3.12.2005, deceased Bahela and witness Gangaram had been to the house of appellant and halted for the night. The incident in the case took place on 4.12.2005. On the said day, in the 3 morning, deceased Bahela and Gangaram had been to village Charadi and they returned back to the house of appellant at about 7.00 p.m. Thereafter deceased Bahela and appellant had been to the market for purchase of vegetable. They brought the vegetable and P.W.1 Sumanbai prepared meal for appellant and Bahela. Appellant, deceased Bahela and witness Gangaram took the meal. Thereafter, deceased Bahela said that since there is shortage of space to sleep, he alongwith Gangaram is going to other house for sleep. Deceased Bahela and witness Gangaram proceeded from the house of appellant. It is further case of the prosecution that appellant suddenly took a wooden plank from the house and gave two blows by the wooden plank to Gangaram, due to which, he fell on the ground. Thereafter the appellant gave a blow on the head of Bahela by the wooden plank on back side. Due to the assault, deceased Bahela sustained bleeding injury and fell down on the ground. The appellant again gave 4/5 blows by the wooden plank on the head of deceased Bahela, due to which, the deceased Bahela sustained injuries and died on the spot. At the 4 relevant time people gathered on the spot. P.W.1 Sumanbai informed about the incident to the Sarpanch of the village witness Nimba and he informed about the incident to the police by telephone and accordingly police came to the spot. P.W.1 Sumanbai lodged complaint (Exh.14) on 5.12.2005 with police station stating that the appellant was suspecting about illicit relations in between her and deceased Bahela. On that ground, he assaulted the deceased Bahela and the witness Gangaram by a wooden plank. Due to the injuries sustained, Bahela died on the spot. It is further case of the prosecution that on the basis of the complaint lodged by P.W.1 Sumanbai, Crime No.71/2005 was registered at Police Station, Chopda for the offences punishable under Sections 302, 324 of I.P.C. P.W.13 P.I. Bhairav and P.W.15 A.P.I. Rajput carried out investigation of the crime. During the investigation, inquest panchnama in respect of dead body of Bahela and the spot panchanama were prepared. During the investigation the clothes on the persons of appellant were seized 5 and the wooden plank used in the commission of offence was seized at the instance of the appellant. P.W.14 Gangaram was sent to hospital for medical examination and certificate to that effect was obtained. During investigation the statements of witnesses were recorded and seized articles and clothes were sent to the Chemical Analyzer. After completion of the investigation, police filed charge-sheet against the appellant for the offences punishable under Section 302, 324 of I.P.C. The learned J.M.F.C. Chopda committed the case to the court of Sessions since the offence under Section 302 of I.P.C. was exclusively triable by the Sessions Court. On 21.9.2006 charge for the offence punishable under Section 302 and 324 of I.P.C. was framed against the appellant. The plea of the appellant was recorded in which the appellant denied the charge, pleaded not guilty and claimed to be tried. 3 The Ad hoc Additional Sessions Judge convicted the appellant herein under Section 302 of I.P.C. and sentenced to suffer imprisonment for life and also 6 to pay fine of Rs.1000/-. The appellant was also convicted under Section 324 of I.P.C. and sentenced to suffer R.I. for two years and to pay fine of Rs. 500/-. While convicting the appellant, the trial Court mainly relied on the evidence of P.W.1 Sumanbai Gelsing – complainant, P.W.6 Suresh Gelsing and P.W.14 Gangaram, who were the eye witnesses to the incident. The trial Court also relied upon the evidence of seizure of wooden plank used in commission of the offence, at the instance of the appellant and seizure of clothes as on the person of the appellant, having blood stains. 4 The learned Counsel appearing for the appellant broadly argued three points for consideration. According to him, the trial Court did not properly appreciate the plea of insanity taken by the appellant. Secondly, the appellant herein is not the author of the injuries sustained by the P.W.14 Gangaram or death of the deceased Bahela. According to the Counsel for the appellant, the deceased Bahela fell on the pointed stone and sustained injuries. Thirdly, the trial Court has failed to appreciate the evidence brought on record by the 7 appellant in its entirety including his plea of insanity as provided under Section 84 of the I.P.C. The learned Counsel for the appellant invited our attention to the cross-examination of the complainant and submitted that the complainant Sumanbai, who is wife of the appellant, in her cross-examination has categorically stated that the appellant was suffering from insanity and madness. The learned Counsel also invited our attention to paragraph 46 of the trial Court’s judgment to contend that the defence of insanity was pleaded before the trial Court, however, the same has not been accepted or discussed properly by the trial Court. Therefore, in the submissions of the learned Counsel for the appellant, the appeal deserves to be allowed. 5 The learned A.P.P. appearing for the State invited our attention to the evidence led by the prosecution and supported the reasoning given by the trial Court in support of the conviction of the appellant herein. The learned A.P.P. submitted that merely relying on the cross-examination of the P.W.1 Sumanbai - complainant to contend that the appellant 8 was suffering from madness or he was of unsound mind or insane at the time of commission of offence cannot be accepted in absence of specific evidence brought on record by the appellant – accused. Therefore, the learned A.P.P. would submit that the appeal is devoid of merits and the same may be dismissed. 6 We have appreciated the rival contentions raised on behalf of the appellant as well as the prosecution and also read the evidence. On careful reading of the judgment of the trial Court, it appears that the trial Court has categorically discussed the evidence of all the witnesses including eye witnesses and also the report of the Chemical Analyzer. It would be appropriate to deal with the second submission of the learned Counsel for the appellant in the first instance and then to deal with other submissions. 7 So far as defence taken by the appellant that there was quarrel in between him and P.W.1 Sumanbai and when deceased Bahela tried to intervene, the appellant gave forceful push to Bahela and 9 therefore, Bahela fell on a pointed stone, due to which he sustained injuries, is concerned, the same is falsified by the version of the complainant P.W.1 Sumanbai, who is wife of the appellant. In her examination-in-chief, Sumanbai deposed in paragraph 3, thus: “Accused took out a wooden rod and gave blows first to Gangaram and then to the deceased. Accused gave a blow with a wooden rod on the head of the deceased and thereby deceased lie on the ground. Accused gave another blow with a wooden rod when the deceased was lying on the ground. Accused gave three blows of wooden rod to the deceased. Accused gave blows with a wooden rod to the deceased on the ground of my illicit relations with the deceased. My two sons and two daughters were in the house when the incident took place.” The complainant has also stated in detail about the incident in her examination-in-chief. The complainant Sumanbai, who is P.W.1, has also identified the wooden plank before the Court. 8 Another witness i.e. P.W.6 Suresh Gelsing Barela, who is son of the appellant – accused, in 10 his evidence before the Court has stated thus: “At the relevant time I myself my mother, accused, Gangaram and deceased Bhaila were present at my house. Thereafter, they were chitchatting. My father accused started to beat my mother. At the relevant time firstly my father accused assaulted on Gangaram by means of wooden plank. Thereafter, my father accused has assaulted on Bhaila by wooden plank. My father assaulted on the head of Bhaila. Due to assault Bhaila fell down on the soil. Thereafter my father accused went out the house towards the field.” This witness has also identified the article No.1 wooden plank. This witness has also stated that on the spot there were no stones. 9 The third witness P.W.14 Gangaram was injured in the incident. He has categorically deposed in his statement about the incident. Therefore, there are three eye witnesses to the incident and their statements in the examination-in-chief have not been shattered during the cross-examination. It is an admitted position that P.W.1 Sumanbai is the wife of the appellant – accused, P.W.6 Suresh is son of the 11 appellant and at the relevant period, both of them were residing along with the appellant. Both these witnesses have claimed themselves to be present at the spot of the incident. The complaint immediately lodged by the P.W.1 Sumanbai has been proved by the evidence of Sarpanch of the said village. 10 It has come in the evidence of P.W.13 Ashok Dattatraya Bhairav, P.I. Buldhana Control Room that the accused made voluntary statement (Exh.42) about discovery of wooden plank as used in the commission of the offence. It has come on record that on 12.12.2005 the wooden plank as seized was produced before the P.W.9 Dr. Patil for his opinion and accordingly, P.W.9 Dr. Patil has given his opinion that the injuries as mentioned in the P.M. report of Bhaila can be possible due to assault by means of wooden plank as produced. 11 P.W.15 Ramesh Rajput, A.P.I., Chopada Gramin Police Station has deposed that he sent the wooden plank to the Medical Officer for his opinion as to whether the injuries noticed on the person of deceased Bahela can be possible by wooden plank 12 (article No.1). P.W.9 Dr. Patil, in his evidence, has deposed about production of article No.1 wooden plank before him for his opinion. P.W.9 Dr. Patil opined that the injuries as mentioned in the P.M. report can be possible due to assault by the wooden plank (article No.1) and he further deposed before the Court about issuance of opinion at Exh.34. Therefore, the evidence of the eye witnesses p.w.1 Sumanbai, P.W.6 Suresh and P.W.14 Gangaram has been corroborated by the other evidence on record. The C.A. report at Exh.10 discloses result and detection of human blood on the clothes seized from the person of the accused and the wooden plank. The accused – appellant has not offered any explanation about the detection of human blood on the wooden plank and his clothes. Therefore, the contention raised by the learned Counsel for the appellant that the deceased died due to fall on sharp stone is required to be rejected. 12 Another contention raised by the Counsel for the appellant that the trial Court has not properly appreciated the contention of the appellant that at the time of commission of offence, the appellant was 13 not in a position to know the consequences of his act and as such, he should have been given benefit under Section 84 of I.P.C. In this respect, the Counsel for the appellant merely relied on the cross-examination of the complainant P.W.1 Sumanbai, who is wife of the appellant herein. On going through the cross-examination of the P.W.1 Sumanbai, it cannot be said that at the time of commission of the offence, the appellant was suffering from insanity or he was not knowing the consequences of his act. In case of defence taken under Section 84 of I.P.C., burden lies on the accused to prove that the accused was incapable of knowing the nature of the act at the time of commission of crime. In the case of Dahyabhai Chhaganbhai Thakker v. State of Gujarat (AIR 1964 SC 1563), The Apex Court held: “(i) There is no conflict between the general burden to prove the guilt beyond reasonable doubt, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity. 14 (ii)The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1).The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite, mensrea; 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 s. 84 of the Indian Penal Code: 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 which 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.” 15 The Apex Court in the case of Shrikant Anandrao Bhosale v. State of Maharashtra, reported in (2002) 7 SCC 748 held that section 84 I.P.C. provides that 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. The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105 of the Indian Evidence Act. Under the said section, the court shall presume the absence of such circumstances. Yet in another reported judgment of the Apex Court in the case of Bapu @ Gajraj Singh v. State of Rajasthan (2007(8) SCC 66), in paragraph 12, it is held thus: “12 The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from 16 which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.” 13 The learned Counsel for the appellant, in support of his plea of insanity under Section 84 of I.P.C., placed reliance on the reported judgment of the Apex Court in case of Shrikant Anandrao Bhosale (supra). However, the facts of the case in hand stand on different footing. In case of Shrikant Anandrao Bhosale (supra), the appellant – accused therein took plea of insanity and proved the circumstances namely, the appellant has a family history, his father was suffering from psychiatric illness, cause of ailment not known hereditary plays a part, accused was being treated for unsoundness of mind since 1992, diagnosed as suffering from paranoid schizophrenia. Within a short span, soon after the incident from 27th June to 5th December, 1994, he had to be taken for treatment of ailment 25 17 times to hospital, accused was under regular treatment for the mental ailment, the motive of killing of wife was weak being that she was opposing the idea of the resigning the job of a Police Constable, killing a wife in day light made no attempt to hide or run. Therefore, on careful reading of the judgment of the Apex Court in case of Shrikant Anandrao Bhosale (supra), it can be gathered that, the accused can be said to have proved existence of circumstances as required by section 105 of the Evidence Act so as to get benefit of section 84 I.P.C. In the case in hand, the appellant – accused has not produced any evidence on record in support of his plea of insanity except bare words. The appellant merely relied on the cross-examination of P.W.1 Sumanbai, without any supporting evidence in that regard. No medical evidence whatsoever was produced in support of the plea of insanity so as to claim benefit under Section 84 of I.P.C. Therefore, in the instant case, the trial Court has rightly rejected the defence of the appellant – accused. We do not find any merit in the contention of the 18 Counsel for the appellant that at the time of commission of offence, the appellant was not knowing the consequences of the act done by him. Therefore, viewed from any angle, the plea of the appellant – accused regarding insanity is required to be rejected. 14 The third argument advanced by the Counsel for the appellant that the trial Court has not taken into consideration the overall evidence and circumstances, is required to be rejected. On careful reading of the judgment of the trial Court, it is seen that the trial Court has considered all aspects and the arguments advanced on behalf of the appellant including the plea of insanity. In absence of any material on record produced on behalf of the appellant, the trial Court has rightly rejected the plea of insanity. We, therefore, do not find any merit in the appeal and the same deserves to be dismissed. 15 Before parting with the judgment, we appreciate the efforts put in and assistance rendered by the learned Amicus Curiae Mr. R.L. Kute. We quantify 19 his professional fees at Rs.3000/-. 16 In the result, the Criminal Appeal No.373 of 2008 stands dismissed. Registry to send copy of this judgment to the appellant - accused free of cost through Prison authorities. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) kadam/* 20 CRIMINAL APPEAL NO.373 OF 2008. Date of decision :15.06.2010 For approval and signature. THE HONOURABLE SHRI JUSTICE S.B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } Yes. 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.