1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 197 of 19993 Judgment reserved on 25.2.2008 Date of decision: 14. 3. 2008 ________________________________________________________ State of Himachal Pradesh …….Appellant Versus Ranjeet Singh …..Respondent Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellant : Mr, P. M. Negi, Deputy Advocate General, For the respondent : Mr. Vinay Thakur, Advocate vice Mr T. R. Chandel, Advocate. _________________________________________________________ Surinder Singh, J. The State has challenged the acquittal of the respondent, for an offence punishable under section 376 Indian Penal Code, for allegedly committing rape on the prosecutrix, a minor child of aged about five years. The undisputed facts in short, which emerge from the prosecution evidence, are: (i) the mother of the prosecutrix Tara Devi (PW1) was residing in a rented premises with her children, adjacent to a rented room of the respondent in a three storeyed building at Chopal. (ii) The respondent was studying in plus one and his elder brother was in 10+2. As already stated Whether reporters of the Local papers are allowed to see the judgment? yes 2 above, both were residing in the same building in a room adjacent to the room of the complainant. (iii) Her husband Mehar Singh was employed as clerk in post office, Chopal (iv) On 5.5.1991 Mehar Singh the father of the prosecutrix had gone to village Nerwa in connection with some official work. It is alleged that on 5.5.1991 at about 10 a.m. the complainant, Smt. Tara Devi, the mother of the prosecutrix, went to the public water tap, located nearby in the open place to wash the clothes. Her minor son was getting ready for the school. The prosecutrix was playing outside in the compound. The complainant after washing the clothes, returned to her residence. She found the prosecutrix weeping inside. On inquiry the prosecutrix informed her mother (PW1) that the respondent had taken her into his room and was laid on the bed. She was sexually assaulted, which caused bleeding from her private parts; her legs were washed by the respondent. Thereafter she was left in her residence. She (PW1) was shocked to hear this. She went to the Post office and narrated about the entire incident to Chand Ram Sub-Postmaster (PW5), who informed her husband telephonically. Mehar Singh (PW3) returned from village Nerwa around 8 p.m. on the same day. The complainant told the entire story to him and then they went to the police station and filed the written complaint Ex.PA on the basis of which FIR Ex.PW7/A was registered. Head Constable Bhagwan Singh (PW7) visited the spot and prepared the site plan Ex.PW7/A at the instance of the prosecutrix. The respondent 3 was not found there, he was arrested during night from the bushes nearby. The prosecutrix was got medically examined by the police next day i.e. on 6.4.1991 at about 11 a.m. in civil hospital Chopal from Dr.Vijay Thakur (PW4). He issued the medico-legal-certificate Ex.PC qua the prosecutrix. On her examination the Doctor found some injuries on her private parts. Hymen was found ruptured, margins were sagged and index finger could be easily introduced in her private part. Semen could not be detected due to lack of laboratory facility. The clothes were preserved and sent for chemical analysis for detection of semen and blood grouping. The Chemical Analyst found human blood of “Group A” on her trouser, shirt and Banian but no semen was detected. The Doctor opined that it was a case of penetration and the observations made in the medico-legal-certificate were suggestive of sexual intercourse with the prosecutrix. The respondent-accused, after his arrest, was also taken to the hospital on 6.7.1991 at 11.35 a.m. He was medically examined and was found physically fit to perform sexual intercourse. No injury was found on his penis but the smegma was found present on his glans. His jean-pant was handed over to the police. The police sent it, for the chemical examination. It did not contain any blood-stains, but it had semen stains. The report is Ex.PF. On 7.7.1991 respondent-accused is alleged to have made a disclosure statement Ext.PW5/A, regarding his underwear Ex.P4, pursuant to which it was recovered vide recovery memo Ex.PW5/B, 4 from the bath-room in the presence of PW5 Chand Ram Sub- Postmaster and one Shri Jeet Ram, Clerk of Post office Chopal. When the matter was under investigation and the respondent was in the police custody Shri Hari Singh, uncle of the respondent, moved an application Ex.DA to the Station House Officer, Police Station Chopal, on 15.7.1991 stating therein that the respondent was suffering from epilepsy. He had been under medical treatment w.e.f. January 1991 much prior to the alleged occurrence. Since his condition was deteriorating after the arrest, he had requested for his treatment from a competent Medical Officer. But no action was taken by the Station House Officer, Police Station, Chopal. However, after completing the investigation the case was presented in the court for trial of the respondent. Respondent was charge-sheeted by the learned Sessions Judge under the aforesaid section, to which he pleaded not guilty and claimed trial. To prove its case the prosecution examined Tara Devi (PW1) mother, Mehar Singh (PW3) the father of the prosecutrix, Dr.Vijay Thakur, (PW4) Medical Officer, Chand Ram (PW5) Sub Post Master, Padam Ram (PW6), Secretary Gram Panchayat, MHC Bhagwan Singh (PW7), Chuni Lal, Clerk (PW8), Pritam Chand, Additional S.H.O. (PW9) and Constable Roshan Lal (PW10). Respondent was also examined under section 313 of the Code of Criminal Procedure. He denied the prosecution case and also raised the defence that he was suffering from epileptic-fits, therefore, 5 he did not recollect about his acts and omissions, if any, during such fits. To prove his version, he has examined Dr. Abdhar Ahmad (DW1) Civil Dispensary, Sarain, Tehsil Chopal with whom, the respondent was undergoing the treatment before the alleged occurrence, Smt.Kubza Devi (DW2), Tahinya Ram (DW3), Mangat Ram (DW4), Prem Raj (DW5) and Ravinder Kumar (DW6) Pharmacist of Sub-Jail Hamirpur. After going through the evidence on record and upon hearing the rival contentions of the learned counsel for the parties, the learned trial court without giving any finding whether the respondent was connected with the alleged offence, straight away considered and accepted the defence raised by the accused and he gave the benefit of section 84 of the Indian Penal Code, consequently acquitted him. The State felt aggrieved and assailed the acquittal of the respondent in this appeal on the ground that the learned trial court has wrongly held that the case of the respondent fell under the aforesaid exception. We have heard the learned counsel for the parties and have carefully reappraised the evidence on record. Now, we proceed to examine the matter in hand whether the offence charged was committed by the respondent-accused? By now it is well settled by the judicial precedents and propositions laid down by catena of authorities of the apex court 6 regarding the doctrine of burden of proof in the context of the plea of insanity as follows: (i) The prosecution must prove beyond reasonable doubt that the accused has committed the offence with the requisite mensrea, where it is applicable and burden of proof always rests on the prosecution from beginning to end of the trial; (ii) There is rebutable presumption that the accused was not insane, when he committed the crime, in the sense laid down by section 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 rests upon a party to civil proceedings; (iii) 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 and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting upon the prosecution was not discharged. Thus the trial court was under obligation, first to decide, before relying on the defence-plea; whether the prosecution had been able to connect the respondent-accused 7 with the offence charged? Unfortunately, this finding was not arrived at and it directly appreciated the plea taken under section 84 IPC and held that it stood proved and gave its benefit. This procedure is not interceded by law. In other words, the court is obliged first to give clear findings regarding the commission of crime by the accused, thereafter it shall consider, whether the case of the accused falls under any of the exception(s). It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent unless proved to be contrary and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in the case in hand is obliged to prove beyond reasonable doubt that the accused had committed the crime. This general burden never shifts and it always rests upon the prosecution. Now we proceed to scan the evidence on record to see if the prosecution has been able to prove the complicity of the respondent with the alleged crime. At the very out set, from the perusal of the medico-legal- certificate coupled with the statement of the prosecutrix and her mother, we find that the prosecutrix was sexually assaulted. Whether it is the accused, for that we would like to examine the statement of the prosecutrix. Prosecutrix is a child witness and the trial court questioned her whether she knew the sanctity of oath when she avoided answering the questions, her statement was recorded in question and answer form. According to her (PW2), She had been visiting the quarter of the 8 respondent in the neighborhood. She has stated that her salwar was removed by Bhaiya and she was raped. Her private part had bled, which was cleaned by Bhaiya. To a question put by the learned Prosecutor whether the accused present in the court was the same bhaiya or not? The prosecutrix had replied that the person present in the court was not that bhaiya and that bhaiya had gone to Nerwa. Apart from that bhaiya no other bhaiya used to reside there. According to her, she disclosed his identity to her mother. Naturally, the prosecutrix could be the only person who could have identified the assailant. But in the last line of her cross-examination she has stated that, that “Bhaiya” was not arrested by the police in her presence. Tara Devi (PW1), the mother has also stated that the elder brother of the respondent used to reside with the respondent and prosecutrix has sated that on that day “Bhaiya” had gone to Nerwa. Thus, in the circumstances the respondent could not be connected with the alleged offence as the identity of the accused stands not established. The prosecution also seeks to connect the respondent by establishing that the jean-pant of the respondent had semen stains. This pant was on his person when he was medically examined. The respondent is a young man, seminal discharge is natural. It did not contain any blood-stains. Therefore, this circumstance is also not enough to hold him responsible for the alleged act. Next piece of evidence relied upon, is the recovery of the underwear Ex.P4 which contained the blood of group “A” and also the semen stains. The respondent was arrested on 5.7.1991 and he is 9 alleged to have made his disclosure statement on 7.7.1991 i.e. two days after his arrest, regarding the under wear and it was recovered on the same day from the bath room. PW5 Chand Ram is the witness to the said recovery. But according to him, it was recovered from the room and in the tail-end of his cross-examination he has stated that it was recovered immediately after the arrest of the respondent, this makes the recovery of the under- wear highly doubtful. Further, as per disclosure statement of the respondent he had stated that the underwear was washed by him, if that was so, then the blood-stains worth grouping and semen-stains could not have been possibly found on it. The said underwear was also not got identified from the prosecutrix. Therefore, we are constrained to hold that the prosecution could not prove that it was respondent who had committed the alleged crime, beyond a reasonable doubt. Now, for the argument sake, if the accused is held to be responsible for the alleged rape, the defence put forth again exonerates him from this charge, which he has successfully proved by preponderance of probabilities. According to the respondent he was suffering from epileptic-fits, which, according to the Doctor, is one kind of insanity. PW4 Dr.Vijay Thakur, Medical Officer, Civil Hospital, Chopal, had medically examined the respondent on 6.7.1991. According to him, a man loses his cognative faculties under the influence of insanity. He also loses such faculties in epilepsy including his physical control as well. The Doctor has further admitted about the epileptic psychosis and the consequences thereof, as described in Modi’s Medical Jurisprudence & Toxicology. According to him, 10 epileptic psychosis is the result of advance epilepsy. In the Modi’s Medical Jurisprudence Toxicology (22nd edition) page 630; Dr. Modi has defined the characteristics of a person suffering from epileptic psychosis, in which he performs some acts, not being conscious of what he is doing. The relevant Para can usefully be quoted as under: “The disease is generally characterized by short transitory fits of uncontrollable mania followed by complete recovery. The attacks however become more and more frequent. There is geneal impairment of the mental faculties with loss of memory and self control. At the same time hallucinations of sight and hearing occur and are followed by delusions of a persecuting nature. They are deprived of all moral sensibility, are given to the lowest form of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long standing cases there is progressive dementia or mental deficiency…………………………………………………….. ……………………………………………………………………………….. Post epileptic in sanity: In this condition stuper following the epileptic fits is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognize his own relatives, and wanders aimlessly about. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempt to conceal them at 11 the time of penetration but on regaining consciousness, may try to conceal them out of fear.” Crucial point for deciding the question is time, when the offence actually committed. Burden of proving this can be discharged by the accused from the circumstances which preceded, attended and followed the crime. In the instant case, previous history of insanity was revealed by moving an application Ex.PA as aforesaid to the S H O, (PW9) Police Station Chopal, during the investigation of the case when the respondent was in the police custody. Respondent has examined DW1 Abdhar Ahmad, who was posted in the civil dispensary where he was earlier treated by him. He has proved the treatment of the respondent from 11.1.1991 and to this effect he has proved the prescription slips issued by him and entered in the Register. According to him, respondent remained under his treatment continuously till 31.5.1991. He has further stated that patients of epilepsy may indulge in the commission of heinous crimes like theft, sexual assault and brutal murders. The witness also agreed to the proposition as propounded by Modi that the patients of epilepsy are deprived of all sensibility and are given to lowest form of vices and sexual excesses. DW2 Smt.Kubza Devi has stated that the respondent was behaving like a mad person and hugged her in the month of Baisakh. She pushed him aside and he became unconscious and after about 20 minutes he regained his consciousness and when she explained to the respondent for his behaviour, respondent told that he did not know about his acts. 12 According to (DW3) Tahinya Ram, respondent had started behaving like a mad man about 1½ years ago and was violent at that time and was caught hold by her and became unconscious for some time and further when he was asked about his behaviour he pleaded innocence. Witness had reported the matter to the Doctor DW1. DW4 father of the respondent has stated that behaviour of the respondent was abnormal and some times he did not know about his act and omission. He had been taking him to PGI for his treatment, even when he remained in judicial custody as under trial prisoner. He was suffering from epilepsy as stated by DW6 Ravinder Kumar Pharmacist, sub jail Hamirpur. Record of his treatment was received in the jail and he had been giving medicines as per prescription issued by the I.G.M.C. Shimla. He was referred for E.E.G. to P.G.I.Chandigarh. He has also proved the prescription slips Ex.DA to Ex.DF. In fact, in a case of insanity it is not just to demand a proof of the insanity from the accused who had just recovered from the mental derailment and to demand of him to establish his mental faculties at the time of alleged offence. However, the respondent has placed enough material on record to show that he was suffering from epileptic fits for about 6 months prior to the alleged incident and even thereafter he remained under treatment during the judicial custody. His uncle Hari Singh had also brought to the notice of the then S.H.O. by moving an application Ex.DA which was admitted by him but he did not take any action. The respondent has been able to prove by preponderance of probabilities 13 that his condition after the fits was that he did not remember anything. His previous history of unsoundness of mind was revealed to the police, which was not investigated and the respondent was not subjected to medical examination. The Supreme Court had an occasion to deal with the matter with respect to the unsoundness of mind, invoking the provision of Section 84 of the Indian Penal Code in case Bapu alias Gujraj Singh versus State of Rajasthan 2007(8) Supreme Court Cases 66. It had elaborately dealt with the matter and reiterated the principle of law governing the subject. Hon’ble Dr. Justice Arijit Pasayat, speaking for the court has categorically held that every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. “Legal insanity” is distinguishable from “medical insanity” and for the purpose of section 84 of the Indian Penal Code; the court is concerned with “legal sanity” and not “medical insanity”. It has also been held that where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will i.e.furios is nulla voluntas est. Thus applying the ratio of Bapu alias Gujraj Singh case supra and in view of the testimony of the defence witnesses, 14 behaviour of the respondent-accused on the day of alleged occurrence is corroborated by the medical evidence that the respondent-accused was mentally ill within the meaning of section 84 Indian Penal Code, and it creates a reasonable doubt more specifically in the light of the fact that the police during the investigation knowing fully well about the epileptic fits did not get him medically examined, in order to rule out the possibility that at the time of occurrence respondent-accused was not mentally ill. The up-shot of the entire discussion is that the prosecution has failed to prove beyond reasonable doubt firstly; that it was the respondent, who is alleged to have committed the alleged offence. Secondly, if by any stretch of imagination, it is proved that it was the respondent who had committed the alleged crime, then defence has been able to prove by preponderance of probabilities that the respondent-accused was of unsound mind at the relevant time, suffering from epilepsy. Therefore, the respondent was rightly given benefit of doubt by the learned trial court. Thus on account of the above findings and reasons therefor, we are not inclined to interfere in the impugned judgment of acquittal. The appeal is dismissed. The respondent is discharged of his bail bonds entered upon by him during the proceedings of this case. (Surjit Singh), J. March 14,2008 (Surinder Singh),J. (D)