Full Judgment Text
2018:BHC-AS:17051-DB
Cri-Apppeal-731-13.doc
BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 731 OF 2013
Mohammed Rafiq Shahabuddin Shaikh )
Aged about 41 years, residing at )
Chandresh Mahal, Awing/301 )
Nayanagar Mira Road East )
(present in judicial custody at Kolhapur )
Central Jail) ) ….Appellant
(Original Accused)
V/s
The State of Maharashtra )
at the instance of Mira Road )
Police Station ) …. Respondent.
Mr. Shekhar A Ingawale for the Appellant.
Mrs. M.M. Deshmukh APP for the RespondentState.
CORAM: B. R. GAVAI &
SARANG V. KOTWAL, JJ.
th
DATE: 29 JUNE, 2018
ORAL JUDGMENT: (Per B.R. Gavai, J.)
1] Being aggrieved by the judgment and order passed by the
learned Adhoc Additional Sessions Judge2 Thane, thereby convicting
the Appellant for the offence punishable under Section 302 of the
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Indian Penal Code, sentencing him to undergo life imprisonment and
to pay fine of Rs 5000/ and in default thereof to further undergo
rigorous imprisonment for six months, Appellant has approached this
Court.
2] The prosecution case, in brief, is thus :
3] Accused was residing in Flat No.301, Kango Estate, Evergreen,
'A' Wing, Pooja Nagar, Naya Nagar, Mira Road (East). The first
informant Aayub Shaikh was also residing in the same building.
Deceased Devendra Thapa @ Chavan was working as watchman of
the Society and on 8/11/2007 the first informant had gone to the
house of his brother at Chandresh Mahal building, which is situated in
the same complex of Kango Esate, Evergreen. One woman named
Husna told the first informant that, the accused was inflicting blows
of knife on the person of watchman Devendra Thapa. He therefore
rushed to the place of incident, which was in front of the gate of the
Society. He had seen that, the accused was inflicting blows of knife
on the person of the watchman Devendra Thapa. Accused informed
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him that, he had asked the watchman to irrigate plants at his home
and since the watchman did not obey his orders, he had assaulted him
with knife. The first informant immediately sent message to the
police chowki. Police immediately came on the spot. Deceased
Devendra Thapa was shifted to the hospital. Initially C.R.
No.471/2007 came to be registered for the offence punishable under
Section 307 of the Indian Penal Code. After the death of the
deceased, the same was converted for the offence punishable under
Section 302 of the Indian Penal Code.
4] At the conclusion of the investigation, chargesheet came to be
filed in the Court of learned JMFC. Since the case was exclusively
triable by the learned Sessions Judge, it came to be committed to the
learned Sessions Judge. Accused pleaded not guilty and claimed to be
tried. At the conclusion of the trial, learned Trial Judge passed the
order of conviction and sentence, as aforesaid. Being aggrieved
thereby, the present appeal.
5] Heard Mr. Ingawale, the learned Counsel for the Appellant and
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Mrs. Deshmukh, learned APP for the State.
6] The learned Counsel for the Appellant does not dispute that, the
present Appellant has committed the crime. The learned Counsel
however submits that the Accused is entitled to the benefit under
Section 84 of the Indian Penal Code, which has been erroneously
negated by the learned Trial Judge.
7] Since the Appellant does not dispute the fact regarding crime
committed by him, it will not be necessary to examine the evidence of
eye witnesses. We will only examine the question as to whether the
accused is entitled to benefit under Section 84 of the Indian Penal
Code or not.
8] It will be relevant to refer to the following observations of the
Hon'ble Apex Court in the case of Shrikant Anandrao Bhosale vs.
1
State of Maharashtra :
“10. What is paranoid schizophrenia, when it starts,
1 (2002) 7 SCC 748
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what are its characteristics and dangers flowing from this
ailment? Paranoid schizophrenia, in the vast majority of
cases, starts in the fourth decade and develops insidiously.
Suspiciousness is the characteristic symptom of the early
stage. Ideas of reference occur, which gradually develop
into delusions of persecution. Auditory hallucinations
follow, which in the beginning, start as sounds or noises in
the ears, but afterwards change into abuses or insults.
Delusions are at first indefinite, but gradually they become
fixed and definite, to lead the patient to believe that he is
persecuted by some unknown person or some superhuman
agency. He believes that his food is being poisoned, some
noxious gases are blown into his room and people are
plotting against him to ruin him. Disturbances of general
sensation give rise to hallucinations, which are attributed
to the effects of hypnotism, electricity, wireless telegraphy
or atomic agencies. The patient gets very irritated and
excited owing to these painful and disagreeable
hallucinations and delusions. Since so many people are
against him and are interested in his ruin, he comes to
believe that he must be a very important man. The nature
of delusions thus may change from persecutory to the
grandiose type. He entertains delusions of grandeur, power
and wealth, and generally conducts himself in a haughty
and overbearing manner. The patient usually retains his
memory and orientation and does not show signs of
insanity, until the conversation is directed to the particular
type of delusion from which he is suffering. When
delusions affect his behaviour, he is often a source of
danger to himself and to others. (Modi's Medical
nd
Jurisprudence and toxicology, 22 Edn.)”
“11. Further, according to Modi, the cause of
schizophrenia is still not known but heredity plays a part.
The irritation and excitement are effects of illness. On
delusion affecting the behaviour of a patient, he is a source
of danger to himself and to others.”
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“13. The burden to prove that the appellant was of
unsound mind and as a result thereof he was incapable of
knowing the consequences of his acts is on the defence.
Section 84 IPC is one of the provisions in Chapter IV IPC
which deals with “general exceptions”. That section
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. Illustration (a)
to Section 105 is as follows :
“(a) A, accused of murder, alleges that, by reason of
unsoundness of mind, he did not know the nature of the
act.
The burden of proof is on A.”
9] It will also be relevant to refer to the following observations of
the Hon'ble Apex Court in the aforesaid case.
“20. Mr. Arun Pednekar relies upon Sheralli Wali
Mohammed v. State of Maharashtra [(1973) 4 SCC 79 :
1973 SCC (Cri) 726] to contend that the mere fact that the
appellant did not make any attempt to run away or that he
committed the crime in daylight and did not try to hide it
or that the motive to kill his wife was very weak, would
not indicate that at the time of commission of the act the
appellant was suffering from unsoundness of mind or he
did not have requisite mens rea for the commission of the
offence. It is correct that these facts itself would not
indicate insanity. In the present case, however, it is not
only the aforesaid facts but it is the totality of the
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circumstances seen in the light of the evidence on record to
prove that the appellant was suffering from paranoid
schizophrenia. The unsoundness of mind before and after
the incident is a relevant fact. From the circumstances of
the case clearly an inference can be reasonably drawn that
the appellant was under a delusion at the relevant time. He
was under an attack of the ailment. The anger theory on
which reliance has been placed is not ruled out under
schizophrenia attack. Having regard to the nature of
burden on the appellant, we are of the view that the
appellant has proved the existence of circumstances as
required by Section 105 of the Evidence Act so as to get
the benefit of Section 84 IPC. We are unable to hold that
the crime was committed as a result of an extreme fit of
anger. There is a reasonable doubt that at the time of
commission of the crime, the appellant was incapable of
knowing the nature of the act by reason of that 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 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. The burden of proof
on the accused to prove insanity is not higher than that
rests upon a party to civil proceedings which, in other
words, means preponderance of probabilities. This Court
held that: (SCR pp. 36768)
“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
mens rea; 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
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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 that 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.”
10] As held by Their Lordships of the Hon'ble Apex Court in the
aforesaid case, the circumstance of unsoundness of mind before and
after the incident is a relevant fact to draw the inference that the
Appellant was under ailment at the relevant time, when he committed
the crime.
11] In the present case, it will also be a relevant fact that, even on
earlier occasion, the Appellant was tried for the offence punishable
under Section 302 of the Indian Penal Code for having committed
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murder of one Manjit Magan Kavetia. In the said case also, a benefit
of doubt under Section 84 of the Indian Penal Code was claimed by
the Appellant. The learned Trial Judge vide judgment and order
dated 19th September, 2001 held that, though the prosecution has
proved that it is the present Appellant who had committed the crime,
the Appellant was entitled to benefit of Section 84 of the Indian Penal
Code and as such, acquitted the accused. The said judgment is
exhibited as Exhibit 54 in the record of the present proceedings.
12] Not only that, the Appellant had also examined Dr.
Sandeep Divekar. It will be relevant to refer to his examinationin
chief, which reads thus :
“Examination in chief by Adv. Sayyed for accused.
1] Accused was taking treatment with me at mental
hospital thane, as indoor patient from 17/04/2008 to
19/07/2008. He was brought by police vide court order.
He was uncooperative and violent. He was diagnosized
as Pyramid Schizophrenia. The progress of this disease
is of three types.
1] Continuous (That means the symptom is
continuous)
2] Episodic (That means sometimes increases and
decreases)
3] Progressive (that means increases day by day.)
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It takes some time to identify the stage of disease.
Recovery of the patient depends upon the chronicity of
the illness. (How old it is?). This patients was also
having the previous history of mental illness. He was
admitted in the hospital on 14/05/2001 to 15/09/2001.
Again the diagnosis was same, he recovered and
discharged from hospital. During examination of patient
he may be normal or may not be. There is no fix interval
for revival of same symptoms.”
13] It could thus be seen that immediately after occurrence of the
incident, the Appellant was admitted in the hospital for treatment of
Paranoid Schizophrenia. It could thus be seen that the burden which
is on the accused to show that, he was suffering from schizophrenia
prior to occurrence of the incident and also after the aforesaid
incident, has been discharged by him. He has led sufficient evidence
in that regard. As such, in view of the law laid down by the Hon'ble
Apex Court, a reasonable inference could be drawn that, at the
relevant time of commission of crime, the Appellant was incapable of
knowing the nature of the act by reason of unsoundness of his mind
and thus is entitled to benefit of Section 84 of the Indian Penal Cod.
14] Though this specific plea was raised before the learned Trial
Judge, the learned Trial Judge has rejected the same by observing
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thus:
“17] Ld. Counsel for the accused relying upon
the evidence of defence witness has contended
that the accused had lost the power of knowing
the nature of the act committed by him at the
time of incident and therefore, he is entitled to
take defence under sec., 84 of IPC. However, I
have already observed that during the course of
trial and even in the statement under sec. 313 of
Cr.P.C. no such defence has been taken by the
accused. It can be accepted that at the time of
incident, accused was not knowing the nature of
the act committed by him due to unsoundness of
mind. But during the course of trial as well as
while recording statement of the accused, he
was in sound condition and had given the sound
answers to the question put to him. Therefore,
at the time of recording the statement at least,
he was knowing the charges levelled against him
and at that time, at least he could say that he
had lost the power of knowing the nature of the
act committed by him, when this incident took
place on 08/11/2007. But his defence is of total
denial”
We find that the reasoning given by the learned Trial Judge to reject
the claim raised by the Appellant under Section 84 of the Indian
Penal Code, is totally erroneous. We may gainfully refer to the
observations of the Hon'ble Apex Court in recent judgment in the case
of Devidas Loka Rathod vs. State of Maharashtra in Criminal Appeal
No.814 of 2017, when Their Lordships have observed thus :
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“13. If from the material placed on record, a
reasonable doubt is created in the mind of the
Court with regard to the mental condition of the
accused at the time of occurrence, he shall be
entitled to the benefit of the reasonable doubt
and consequent acquittal, as observed in Vijayee
Singh vs. State of U.P., (1990) 3 SCC 190.”
It could thus be seen that, even if a reasonable doubt is created in the
mind of the Court with regard to mental condition of the accused at
the time of occurrence, a benefit has to be given to the accused. As
such, we find that the view taken by the learned Trial Judge is not
correct.
15] We are therefore of the considered view that, in the present
case, Appellant/Accused is entitled to the benefit of Section 84 of the
Indian Penal Code and thus he will have to be acquitted.
16] In the result, we pass the following order :
ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order of conviction of
the Appellant is quashed and set aside.
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(iii) The Appellant is acquitted of the charges
charged with.
(iv) The Appellant is directed to be set at
liberty forthwith, if not required in any other
case.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J.)
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BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 731 OF 2013
Mohammed Rafiq Shahabuddin Shaikh )
Aged about 41 years, residing at )
Chandresh Mahal, Awing/301 )
Nayanagar Mira Road East )
(present in judicial custody at Kolhapur )
Central Jail) ) ….Appellant
(Original Accused)
V/s
The State of Maharashtra )
at the instance of Mira Road )
Police Station ) …. Respondent.
Mr. Shekhar A Ingawale for the Appellant.
Mrs. M.M. Deshmukh APP for the RespondentState.
CORAM: B. R. GAVAI &
SARANG V. KOTWAL, JJ.
th
DATE: 29 JUNE, 2018
ORAL JUDGMENT: (Per B.R. Gavai, J.)
1] Being aggrieved by the judgment and order passed by the
learned Adhoc Additional Sessions Judge2 Thane, thereby convicting
the Appellant for the offence punishable under Section 302 of the
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Indian Penal Code, sentencing him to undergo life imprisonment and
to pay fine of Rs 5000/ and in default thereof to further undergo
rigorous imprisonment for six months, Appellant has approached this
Court.
2] The prosecution case, in brief, is thus :
3] Accused was residing in Flat No.301, Kango Estate, Evergreen,
'A' Wing, Pooja Nagar, Naya Nagar, Mira Road (East). The first
informant Aayub Shaikh was also residing in the same building.
Deceased Devendra Thapa @ Chavan was working as watchman of
the Society and on 8/11/2007 the first informant had gone to the
house of his brother at Chandresh Mahal building, which is situated in
the same complex of Kango Esate, Evergreen. One woman named
Husna told the first informant that, the accused was inflicting blows
of knife on the person of watchman Devendra Thapa. He therefore
rushed to the place of incident, which was in front of the gate of the
Society. He had seen that, the accused was inflicting blows of knife
on the person of the watchman Devendra Thapa. Accused informed
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him that, he had asked the watchman to irrigate plants at his home
and since the watchman did not obey his orders, he had assaulted him
with knife. The first informant immediately sent message to the
police chowki. Police immediately came on the spot. Deceased
Devendra Thapa was shifted to the hospital. Initially C.R.
No.471/2007 came to be registered for the offence punishable under
Section 307 of the Indian Penal Code. After the death of the
deceased, the same was converted for the offence punishable under
Section 302 of the Indian Penal Code.
4] At the conclusion of the investigation, chargesheet came to be
filed in the Court of learned JMFC. Since the case was exclusively
triable by the learned Sessions Judge, it came to be committed to the
learned Sessions Judge. Accused pleaded not guilty and claimed to be
tried. At the conclusion of the trial, learned Trial Judge passed the
order of conviction and sentence, as aforesaid. Being aggrieved
thereby, the present appeal.
5] Heard Mr. Ingawale, the learned Counsel for the Appellant and
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Mrs. Deshmukh, learned APP for the State.
6] The learned Counsel for the Appellant does not dispute that, the
present Appellant has committed the crime. The learned Counsel
however submits that the Accused is entitled to the benefit under
Section 84 of the Indian Penal Code, which has been erroneously
negated by the learned Trial Judge.
7] Since the Appellant does not dispute the fact regarding crime
committed by him, it will not be necessary to examine the evidence of
eye witnesses. We will only examine the question as to whether the
accused is entitled to benefit under Section 84 of the Indian Penal
Code or not.
8] It will be relevant to refer to the following observations of the
Hon'ble Apex Court in the case of Shrikant Anandrao Bhosale vs.
1
State of Maharashtra :
“10. What is paranoid schizophrenia, when it starts,
1 (2002) 7 SCC 748
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what are its characteristics and dangers flowing from this
ailment? Paranoid schizophrenia, in the vast majority of
cases, starts in the fourth decade and develops insidiously.
Suspiciousness is the characteristic symptom of the early
stage. Ideas of reference occur, which gradually develop
into delusions of persecution. Auditory hallucinations
follow, which in the beginning, start as sounds or noises in
the ears, but afterwards change into abuses or insults.
Delusions are at first indefinite, but gradually they become
fixed and definite, to lead the patient to believe that he is
persecuted by some unknown person or some superhuman
agency. He believes that his food is being poisoned, some
noxious gases are blown into his room and people are
plotting against him to ruin him. Disturbances of general
sensation give rise to hallucinations, which are attributed
to the effects of hypnotism, electricity, wireless telegraphy
or atomic agencies. The patient gets very irritated and
excited owing to these painful and disagreeable
hallucinations and delusions. Since so many people are
against him and are interested in his ruin, he comes to
believe that he must be a very important man. The nature
of delusions thus may change from persecutory to the
grandiose type. He entertains delusions of grandeur, power
and wealth, and generally conducts himself in a haughty
and overbearing manner. The patient usually retains his
memory and orientation and does not show signs of
insanity, until the conversation is directed to the particular
type of delusion from which he is suffering. When
delusions affect his behaviour, he is often a source of
danger to himself and to others. (Modi's Medical
nd
Jurisprudence and toxicology, 22 Edn.)”
“11. Further, according to Modi, the cause of
schizophrenia is still not known but heredity plays a part.
The irritation and excitement are effects of illness. On
delusion affecting the behaviour of a patient, he is a source
of danger to himself and to others.”
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“13. The burden to prove that the appellant was of
unsound mind and as a result thereof he was incapable of
knowing the consequences of his acts is on the defence.
Section 84 IPC is one of the provisions in Chapter IV IPC
which deals with “general exceptions”. That section
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. Illustration (a)
to Section 105 is as follows :
“(a) A, accused of murder, alleges that, by reason of
unsoundness of mind, he did not know the nature of the
act.
The burden of proof is on A.”
9] It will also be relevant to refer to the following observations of
the Hon'ble Apex Court in the aforesaid case.
“20. Mr. Arun Pednekar relies upon Sheralli Wali
Mohammed v. State of Maharashtra [(1973) 4 SCC 79 :
1973 SCC (Cri) 726] to contend that the mere fact that the
appellant did not make any attempt to run away or that he
committed the crime in daylight and did not try to hide it
or that the motive to kill his wife was very weak, would
not indicate that at the time of commission of the act the
appellant was suffering from unsoundness of mind or he
did not have requisite mens rea for the commission of the
offence. It is correct that these facts itself would not
indicate insanity. In the present case, however, it is not
only the aforesaid facts but it is the totality of the
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circumstances seen in the light of the evidence on record to
prove that the appellant was suffering from paranoid
schizophrenia. The unsoundness of mind before and after
the incident is a relevant fact. From the circumstances of
the case clearly an inference can be reasonably drawn that
the appellant was under a delusion at the relevant time. He
was under an attack of the ailment. The anger theory on
which reliance has been placed is not ruled out under
schizophrenia attack. Having regard to the nature of
burden on the appellant, we are of the view that the
appellant has proved the existence of circumstances as
required by Section 105 of the Evidence Act so as to get
the benefit of Section 84 IPC. We are unable to hold that
the crime was committed as a result of an extreme fit of
anger. There is a reasonable doubt that at the time of
commission of the crime, the appellant was incapable of
knowing the nature of the act by reason of that 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 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. The burden of proof
on the accused to prove insanity is not higher than that
rests upon a party to civil proceedings which, in other
words, means preponderance of probabilities. This Court
held that: (SCR pp. 36768)
“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
mens rea; 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
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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 that 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.”
10] As held by Their Lordships of the Hon'ble Apex Court in the
aforesaid case, the circumstance of unsoundness of mind before and
after the incident is a relevant fact to draw the inference that the
Appellant was under ailment at the relevant time, when he committed
the crime.
11] In the present case, it will also be a relevant fact that, even on
earlier occasion, the Appellant was tried for the offence punishable
under Section 302 of the Indian Penal Code for having committed
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murder of one Manjit Magan Kavetia. In the said case also, a benefit
of doubt under Section 84 of the Indian Penal Code was claimed by
the Appellant. The learned Trial Judge vide judgment and order
dated 19th September, 2001 held that, though the prosecution has
proved that it is the present Appellant who had committed the crime,
the Appellant was entitled to benefit of Section 84 of the Indian Penal
Code and as such, acquitted the accused. The said judgment is
exhibited as Exhibit 54 in the record of the present proceedings.
12] Not only that, the Appellant had also examined Dr.
Sandeep Divekar. It will be relevant to refer to his examinationin
chief, which reads thus :
“Examination in chief by Adv. Sayyed for accused.
1] Accused was taking treatment with me at mental
hospital thane, as indoor patient from 17/04/2008 to
19/07/2008. He was brought by police vide court order.
He was uncooperative and violent. He was diagnosized
as Pyramid Schizophrenia. The progress of this disease
is of three types.
1] Continuous (That means the symptom is
continuous)
2] Episodic (That means sometimes increases and
decreases)
3] Progressive (that means increases day by day.)
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It takes some time to identify the stage of disease.
Recovery of the patient depends upon the chronicity of
the illness. (How old it is?). This patients was also
having the previous history of mental illness. He was
admitted in the hospital on 14/05/2001 to 15/09/2001.
Again the diagnosis was same, he recovered and
discharged from hospital. During examination of patient
he may be normal or may not be. There is no fix interval
for revival of same symptoms.”
13] It could thus be seen that immediately after occurrence of the
incident, the Appellant was admitted in the hospital for treatment of
Paranoid Schizophrenia. It could thus be seen that the burden which
is on the accused to show that, he was suffering from schizophrenia
prior to occurrence of the incident and also after the aforesaid
incident, has been discharged by him. He has led sufficient evidence
in that regard. As such, in view of the law laid down by the Hon'ble
Apex Court, a reasonable inference could be drawn that, at the
relevant time of commission of crime, the Appellant was incapable of
knowing the nature of the act by reason of unsoundness of his mind
and thus is entitled to benefit of Section 84 of the Indian Penal Cod.
14] Though this specific plea was raised before the learned Trial
Judge, the learned Trial Judge has rejected the same by observing
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thus:
“17] Ld. Counsel for the accused relying upon
the evidence of defence witness has contended
that the accused had lost the power of knowing
the nature of the act committed by him at the
time of incident and therefore, he is entitled to
take defence under sec., 84 of IPC. However, I
have already observed that during the course of
trial and even in the statement under sec. 313 of
Cr.P.C. no such defence has been taken by the
accused. It can be accepted that at the time of
incident, accused was not knowing the nature of
the act committed by him due to unsoundness of
mind. But during the course of trial as well as
while recording statement of the accused, he
was in sound condition and had given the sound
answers to the question put to him. Therefore,
at the time of recording the statement at least,
he was knowing the charges levelled against him
and at that time, at least he could say that he
had lost the power of knowing the nature of the
act committed by him, when this incident took
place on 08/11/2007. But his defence is of total
denial”
We find that the reasoning given by the learned Trial Judge to reject
the claim raised by the Appellant under Section 84 of the Indian
Penal Code, is totally erroneous. We may gainfully refer to the
observations of the Hon'ble Apex Court in recent judgment in the case
of Devidas Loka Rathod vs. State of Maharashtra in Criminal Appeal
No.814 of 2017, when Their Lordships have observed thus :
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“13. If from the material placed on record, a
reasonable doubt is created in the mind of the
Court with regard to the mental condition of the
accused at the time of occurrence, he shall be
entitled to the benefit of the reasonable doubt
and consequent acquittal, as observed in Vijayee
Singh vs. State of U.P., (1990) 3 SCC 190.”
It could thus be seen that, even if a reasonable doubt is created in the
mind of the Court with regard to mental condition of the accused at
the time of occurrence, a benefit has to be given to the accused. As
such, we find that the view taken by the learned Trial Judge is not
correct.
15] We are therefore of the considered view that, in the present
case, Appellant/Accused is entitled to the benefit of Section 84 of the
Indian Penal Code and thus he will have to be acquitted.
16] In the result, we pass the following order :
ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order of conviction of
the Appellant is quashed and set aside.
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(iii) The Appellant is acquitted of the charges
charged with.
(iv) The Appellant is directed to be set at
liberty forthwith, if not required in any other
case.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J.)
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