Janardan @ Shankar Tukaram Baing v. The State of Maharashtra

1. CLW over occipital region. Size of injury 5.[5] cm x 2 cm 20 scalp deep with some part of brain protruding from it.

2. Fracture on occipital bone underline the CLW.

3. Fracture on right parietal bone laterally.

4. Clotted blood under the scalp over right parietal area.

5. In the brain we found huge haematoma under right parito occipital area (intra cerebral) with laceration of brain. They further opined that all above injuries were antemortem. As per their opinion cause of death is hemorrhagic shock due to fracture skull bone with brain laceration with intra-cranial hemorrhage. Dr. R.R. Pande prepared the postmortem and it bears signature of this witness and signature of Dr. R.R. Pande. All above injuries are possible with thick bamboo stick. All above injuries on the dead body of deceased are possible with bamboo stick article no. 11. In the cross-examination, this witness admitted that brain is covered with three layers of membrane then there is skull and outside the skull there is scalp and scalp with hair. He further admitted that scalp of the Shalini was covered with hair. He further admitted that as per medical science fracture is internal injury, corresponding to its external injury may be there.

16. Dr. Umesh Balkrishna Chavan (PW 8) is the same witness to which now we have discussed. This witness was recalled only on the aspect of MLC issued by Dr. Pande. In the examination-in-chief he stated that since year 2004 he was attached to Rajapur hospital as medical superintendent. On 11.05.2011 Dr. Pande was also attached to Rural Hospital, Rajapur as medical officer. He can identify his (signature of Dr. Pande) signature as he was worked with him as medical officer for a period of one year. He further stated that Dr. Pande has left his service. He came to know that at present Dr. Pande is attached to some hospital at Singapur and he is working there as medical officer. He further stated that medical certificate now shown to him is issued by Dr. Pande, and it is in his hand writing. It bears signature of Dr. Pande and contents are true and correct. In the cross-examination he stated that patient was examined by Dr. Pande. The injury admeasuring 6x2x[1] cm as mentioned in injury certificate exh. 49 is possible with stick article no. 11. The injury found on the left temporal region of the patient is possible due to impact of head with wooden frame of the door. The evidence of Dr. Umesh Chavan clearly established that death of Shalini was homicidal death.

17. Dr. Shila Subhash Takalikar (PW 9) in examination-in-chief stated that since 2009 till today she was attached to Civil Hospital, Ratnagiri as medical officer. She further stated that she had brought with her original MLC case No. 426 of 2011. Dr. Sonali Paradhi has worked with her at Civil Hospital, Ratnagiri. Now zerox copy of injury certificate shown to her bears signature of Dr. Sonali Paradhi. She further stated that she knows signature of Dr. Sonali Paradhi. She proves the certificate at Exhibit 54 dated 12.08.2011. She further stated that she had brought with her all original case papers of patient Kashibai Balchandra Baing. On 11.05.2011 said patient was admitted in Civil Hospital, Ratnagiri. On 11.05.2011 said patient was medically examined by Dr. Sonali Paradhi. Dr. Paradhi prepared case papers of MLC of said patient. After patient was admitted in ward patient was medically examined by her. The patient was admitted as she had sustained head injury. Patient was conscious and well oriented.

18. Jaywant Bapusaheb Khade (PW 10) is the PI attached to Rajapur Police Station. He stated that on 11.05.2011 one Jagannath Baing came to police station and lodge FIR against accused. Then he admits in the examination-in-chief itself there are two complaints lodged about 1 incident. Then he made an inquiry with Kashibai, but she was not in a position to talk. Thereafter he went to village Tevran. Though he took search of accused he was unable to trace out the accused. He proceeded to the spot where the incident took place along with two panchas. He drew spot panchanama. Then he stated about steps taken by him in the process of investigation. Then he stated that the accused was found in Tevran village and his arrest was effected by sending police personnel including PSO Shri. P.S. Patil. Then he stated about the recording of statement of witnesses. Then he stated that a stick hidden under the heap of dry leaves was discovered and seized under the seizure panchanama. Then he stated about the seizure of the clothes of Kashibai. Then he stated about filing of charge-sheet on completion of investigation.

19. Learned Counsel, Ms. Payoshi Roy appearing for the appellant vehemently submitted that there are material discrepancies in the version of witnesses who are claimed as eye witnesses. She submitted that though Jagannath Baing (PW 1) states that he rushed on the spot hearing hue and cry made by Kashibai Baing injured witness, Kashibai in her deposition before the Court is silent on the aspect of raising hue and cry by her. Though it was the attempt of learned Counsel, Ms. Payoshi Roy to submitted that these witnesses neither eye witness nor their evidence is reliable; we are unable to accept the submission of learned Counsel, Ms. Payoshi Roy for the simple reason that even though Kashibai (PW 2) missed to state before the Court in so far as raising shouts it is utmost natural reaction of any person who would receive a blow on his vital part of the body like head that on receiving such blow the person would raise shouts, as such we are not inclined to reject the version of these two important witnesses.

20. Ms. Roy then vehemently submitted that the accused was residing in one of the room of the house of Kashibai. Kashibai admitted that the accused was her nephew and the relations between the accused and family members of Kashibai were cordial and she admitted that on the day of incident since afternoon accused was shouting loudly in his room. Learned Counsel, Ms. Roy submitted that this above referred fact of the appellant clearly show that his mental condition on that day was not fit and stable.

21. At this stage only we may state that we have gone through the vernacular version of this witness and we found that translation of vernacular version is not in consonance that what witness stated before the Court. As per Marathi version the witness stated that vkjksih R;kP;k [kksyh e/;s eksBeksB;kus vksjMr gksrk, thus, it can be said that the act of the accused shouting loudly in his room was a momentary act and it was not continuous act as tried to be suggested by the learned Counsel, Ms. Roy. Ms. Roy then in support of her submission on the backdrop of defence of insanity invited our attention to Section 84 of the IPC which read thus:

84. Act of a person of unsound mind. - 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.

22. It was submitted by learned Counsel, Ms. Roy that there are two requirements of the provision, firstly, at the time of doing the act the accused was of unsound mind and secondly, because of his unsound mind the accused did not know nature of act, or did not know the act is wrong, or did not know the act is contrary to law. It is then submitted that in the present matter even if it is assumed that on that day the accused was shouting in his room was a momentary act but the other circumstances clearly show that the accused was not a person of a sound mind or mentally fit.

23. Learned Counsel, Ms. Roy further submitted that after effecting arrest of accused the accused was lodged in prison and as his behavior in the prison was not of a normal person or a person of sound mind and he was treated in the mental hospital. An application dated 21.02.2012 was submitted to the Trial Court and it was prayed for calling papers of treatment provided to the accused in the mental hospital and further it was prayed for calling of the report from the mental hospital as to where the accused is a fit person to proceed Trial against him. The learned Judge on application passed the order calling report from the Civil Surgeon, Ratnagiri for examination of the accused by a report of the expert be submitted.

24. In response to the directions, a report was submitted before the Court through Superintendent Special Prison, Ratnagiri along with the certificate issued by the medical superintendent Regional Mental Hospital, Ratnagiri. It was stated in the report dated 20.02.2012 issued under the signature of Medical Superintendent, Regional Mental Hospital, Ratnagiri that on medical examination of under trial prisoner Janardan Baing he was mentally fit. Now this report forwarded to the Superintendent, Special Prison, Ratnagiri was on the basis of the report dated 20.02.2012 and same read thus: Ref:- O.P.D. Reg. No. 2011/544 Name: Janardan Tukaram Baing Ref: Ratnagiri Jail Superintendent, S/b: Dr R.Y. Shirsate Medical Superintendent, Regional Mental Hospital Ratnagiri. Above name Mr. Janardan Tukaram Baing examined review of record File No. 2011/544 Adult male, Conscious, co-operative oriented PMA/RT hormone. Demine deluscion hallucinatory Know conciquen to sequel of event he has done Irritable present, Opinion- Fit for trial, he is able to defend himself. Fit mentally at present. (Emphasis supplied) Advised:- Continue Medication and regular monthly follow up. Ratnagiri sd/- Date:- 28/02/2012 Medical Superintendent, Regional Mental Hospital Ratnagiri. Then an application was filed for issuance of the witness summons to the doctor who was treating the accused. The application was opposed by the prosecution on the ground that as there was already certificate placed on record showing that the accused was fit for trial and was able to defend himself. Learned Trial Judge by order dated 20.11.2012 passed the order of issuance of witness summons as prayed. Then a pursis was submitted through the Counsel appearing for the accused that he is not willing to examine the witness i.e. Dr. Shirsath. Thus, what emerges from perusal of this document is, there was a certificate issued through the Mental Hospital, Ratnagiri on examination of the accused and in that certificate it was observed clearly and unambiguously that the accused was fit for his trial. The Counsel appearing for appellant though initially sought for examination of doctor by filing application for issuing summons and that application was allowed but the defence filed pursis and thereby declined to examine the witness.

25. Learned Counsel, Ms. Roy submitted that the application for calling the document of the treatment and certificate of an expert from mental hospital dated 21.02.2012 was filed. Ms. Roy then invited our attention to the application dated 16.05.2011 seeking police custody remand of the accused. The copy of the same finds place in the record. Perusal of the application show that it is stated in the application that the physical condition of the applicant was good till 14.05.2011 but on 14.05.2011 after 11.30 am he started behaving like an insane person. The accused started cutting the wire by his teeth and was chewing the small pieces. He also jumping started jumping over the wall and started hiding himself in the washrooms. It is further stated in the application that when either staff or the officer in the prison approached the accused he started jumping on the prison of staff and the officers and was trying to bite the staff. It is further stated in the application that probably because of the act committed by the accused he was either under depression or was carrying guilty complex. Learned Counsel, Ms. Roy then invited our attention to the statement under Section 313 of Code of Criminal Procedure. The accused submitted a written say in response to question

118. Question 118 read thus as do you want to say anything more than this. In the written say submitted by accused on 09.11.2012 he stated that since last 2 years he is suffering from mental illness and is under treatment at a mental clinic. Then he stated that on the day of incident he was sleeping for the entire day and as he was filing uneasy he was shouting loudly. Then he further stated that on the second day of the incident he was arrested from his house by Rajapur Police Station and when he was in the custody of police his mental suffering increased and he started hitting his head on the door as such, police brought him in the mental clinic. Then he stated that he do not know anything about the incident nor he is in a position to remember what happened on that day and because of his mental illness he is unable to remind what happened ad how happened. Then he stated that a false case is registered against him. He had not committed any crime and he be acquitted.

26. Ms. Roy on the basis of above referred material submitted that there was more than sufficient material to show that the appellant accused was a person of unsound mind. It is then submitted that this material was within the knowledge of learned Trial Court. It is then submitted that though application was filed before the Court below for calling the case papers on the back drop of mental illness of the appellant – accused the case papers were not submitted before the Court and as such this very important material was suppressed by the prosecution and as such learned Trial Court failed to appreciate the defence of insanity raised by the appellant in proper perspective. Learned Counsel, Ms. Roy submitted that material in the form of applications before the Trial Court namely, the remand application, application filed at the instance of appellant calling for the papers of treatment provided to the accused would show that the accused has discharged his burden. It is also submitted by Ms. Roy that the accused’s burden is much lighter than the burden placed on the prosecution of proving the guilt of accused beyond reasonable doubt, and the accused has to merely discharge the civil burden of proving his case on the balance of probabilities. Learned Counsel, Ms. Roy also invited our attention to extract from some journal and text books wherein the terms schizophrenia, hallucinations, delusions are discussed. In so far as other grounds are concerned, learned Counsel, Ms. Roy submitted that the evidence of so called recovery from the accused is rejected by learned Trial Court.

27. Lastly, learned Counsel, Ms. Roy submitted that assuming the case of prosecution as it was put up before the Trial Court it clearly reveals that the accused is nephew of Kashibai and accused was residing in a room of Kashibai and relations between the accused and family of Kashibai were good barring a solitary incident of an election contested by deceased Shalini. Accused was under impression that Shalini and Kashibai were taunting him and they were indulged in an act of black magic (Devdevaski). The accused was not armed with any sharp weapon and the alleged assault is by way of a stick thus, considering these factors it cannot be state that the appellant accused was carrying any intention to kill either Shalini or Kashibai and the reaction of the accused was on the spur of moment. Learned Counsel, Ms. Roy submitted that the offence would not fall under Section 302 of IPC but it would come under the exceptions of Section 304 and more particularly 304(II).

28. Learned Counsel, Ms. Roy in support of her submissions relied on the following judgments in the case of Siddhapal Kamala Yadav v. State of Maharashtra[1], Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat[2], Gopal Krishnaji Ketkar V. Mohamed Haji Latif and Others[3], Ratan Lal V. The State of Madhya Pradesh[4], Devidas Loka Rathod V. State of Maharashtra[5], State of Rajasthan V. Vidhya Devi[6], Shrikant Anandrao Bhosale V. State of Maharashtra[7], Revatinath Narayan Billewar

V. State of Maharashtra[8], Nitai Naik V. The State[9], Ram Jattan and

Others V. State of UP10, Dayaram @ Jayaram Parshuram V. State of Maharashtra11, Ramesh Nana Ghorpade V. State of Maharashtra12, 1 2009 CRI.L.J. 372

8 2005 ALL MR(Cri) 869 9 AIR 1957 ORISSA 168 10 1995 SCC (Cri) 169 11 1996 (2) Mh.L.J. 1056 12 1997 (1) Mh.L.J. 16 Sheralli Wali Mohammed Vs. The State of Maharashtra13, Surendra Mishra V. State of Jharkhand14,

29. Per contra, learned APP opposed the submissions of learned Counsel for the Appellant. Learned APP submitted that the evidence of the Jagannath (PW 1) and Kashibai (PW 2) who are the eye witness and an injured witness respectively is most natural, reliable and trust worthy. Learned APP then submitted that the defence of insanity is clearly an afterthought theory. Learned APP submitted that as there is absolutely no material to show that on that day and particularly when the incident took place the accused was a person of unsound mind which is the prerequisite of Section 84 of IPC so as to give benefit to the appellant.

30. After having heard the learned Counsel appearing for respective parties and on going through the record with the assistance of learned Counsels, we are unable to accept the submissions of Ms. Roy to the effect that the appellant was a person of unsound mind so as give him the benefit of Section 84 of IPC. Though, the learned Counsel, Ms. Roy placed reliance on various judgments in support of her submission and though there cannot be a dispute on the proposition of law reflected in the judgments, in our opinion, the peculiar facts in the present matter which are clearly distinguishable prompt us to say that the judgments relied on by Ms. Roy are not of any help to the appellant.

31. The Hon’ble the Apex Court in the matter of Siddhapal Kamala Yadav (supra) observed thus:

7. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There, is no definition of "unsoundness of mind" in the IPC. Courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on an accused to prove his insanity, which arises by virtue of Section 105 of the Indian Evidence Act, 1972 (in short the `Evidence Act') and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. (See Dahyabhai v. State of Gujarat AIR 1964 SC 1563). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarises them as follows: "Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detections whether, after his arrest, he offered false excuses and made false statements. All facts of this sort are material as bearing on the test, which Bramwall, submitted to a jury in such a case: `Would the prisoner have committed the act if there had been a policeman at his elbow ? It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is, what Mayne calls, "inferential insanity".

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) what 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 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. 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.

9. There are four kinds of persons who may be said to be non compos mentis (not of sound mind), i.e., (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4.) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hala's Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as arecommitted while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.

10. Section 84 embodies the fundamental maxim of criminal law, i.e., “actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). 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 (furios is nulla voluntas est).

11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. ….. ….. ….. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England.(Emphasis supplied) ….. ….. …..

32. Thus, these observations of the Hon’ble the Apex court would make it clear the to grant benefit under Section 84 to an accused the prerequisite is the act of the accused at the time of the incident. Here in the present case, at the cost of repetition, we may state that the material on which learned Counsel for the appellant heavily relies on that the appellant was a person of unsound mind is the material after four days of arrest of the accused and then explanation in the 313 statement to which we have already referred elaborately.

33. At the cost of repetition, we may state that Kashibai (PW 2) makes a reference of shouting of the accused loudly on that day. Again, at the cost of repetition, we state that vernacular version clearly show that it was only a momentary act of shouting there is nothing on record to show that either on the earlier day or on that day when the incident took place the behavior of the accused was of an person of unsound mind. Behaviour of which the learned Counsel, Ms. Roy placed heavy reliance supports from 4th day of arrest of accused. It has also come in the evidence that the accused was serving at Mumbai since last 2-3 years prior to the incident and he was visiting his native place frequently. Neither Jagannath (PW 1) nor Kashibai (PW 2), Jyotsana (PW 5) neighbour states that whenever the accused was visiting to his native place, on any of such visit his behavior was like a person of unsound mind.

34. The reliance is also placed on a written say submitted in response to question in 313 statement that since last 2 years he is suffering from mental illness and he is under treatment at mental clinic. On one hand the Counsel for defence heavily attacked on the prosecution for not bringing the material before the Court in respect to the medical treatment provided to the accused when he was an under trial prisoner, and on the other hand, when the accused himself has taken a stand in his written say that he was under a treatment since last 2 years nothing was placed on record by the accused himself to show that he was under treatment. Now it was the case of accused that he was under a medical treatment in a medical clinic, nothing prevented the accused to place on record his own documents showing that he was suffering from mental illness. Not placing on record such documents which certainly could have been in possession of the accused himself, after 4 days of his arrest accused started behaving like an insane person, then accused filed an application for issuance of witness summons to the doctor and then filed a pursis declining to examine the doctor are the factors on which it can safely be said that the defence of insanity raised by the appellant accused is an afterthought theory as such, we are rejecting the theory put forth by the learned Counsel for the appellant in defence.

35. In so far as the appreciation of evidence and the conclusion drawn by the trial Court for the complicity of accused in offence under Section 307 of IPC and awarding the sentence to accused – appellant for committing offence under Section 307 of IPC is concerned, we see no reason to interfere with.

36. Though, we have rejected the theory of insanity raised in the defence, we found a considerable merit in the submission of learned Counsel, Ms. Roy in so far as the submission that the offence would not fall under Section 302 of IPC but would fall under exceptions of Section 304-II. Learned Counsel, Ms. Roy was justified in making submissions that the evidence brought on record clearly show that the relations between the accused and the Kashibai were good. Accused was nephew of Kashibai and was residing in one of the room of Kashibai till the day of incident. There is also evidence to show that there was some exchange of words between the accused and Shalini and Kashibai when the accused came to the place where Shalini was washing utensils. The record also show that the accused was not carrying any dangerous or sharp weapon with him and he said that why you are indulge in the act of black magic making the accused issue less show that the accused was depressed as he was issue-less and in the spur of moment he led attack on Shalini and Kashibai as such the act of appellant – accused would fall under Section 304(II) of IPC. Hence, we deem it appropriate to sentence the appellant to rigorous imprisonment for 10 years for the offence punishable under Section 304-II of the IPC. We do not want to interfere in rest of the part of the order.

37. Considering all these facts, we pass the following order: ORDER

Court convicting the accused for committing offence punishable under Section 302 of IPC and awarded him sentence for rigorous imprisonment of life is altered to offence under Section 304(II) of IPC and the appellant is to suffer sentence of rigorous imprisonment for 10 years.