IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1902 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE
MR.BHASKAR BHATTACHARYA
AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= ================
========================================= ================ RAMESHJI PRATAPJI THAKOR Versus STATE OF GUJARAT ========================================= ================ Appearance :
MR. MRUDUL M BAROT for Appellant.
MS. KRINA CALLA, ADDL. PUBLIC PROSECUTOR for Respondent.
========================================= ================ CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA Date : 11/10/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This is an appeal at the instance of a convict and is directed against an order of conviction and subsequent sentence dated July 31, 2006, passed by the Additional Sessions Judge, 1st Fast Track Court, Deesa, Banaskantha, in Sessions Case No. 58 of 2005, thereby convicting the appellant on the charge of murder with a direction to undergo life imprisonment under Section 302 of the Indian Penal Code [“IPC” for short] and to pay fine of Rs. 500/- with a stipulation that in default of payment of fine, he should undergo further imprisonment for one month. The learned Sessions Judge further imposed imprisonment for two months under Section 504 of IPC with a direction that both the sentences should run concurrently.
2. The following charge was framed by the learned Sessions Judge against the accused:-
“You, the accused, in the noon at about 11.30 hours on 20-11-04, in the courtyard of the room of your field, to dishonour your wife Alkaben, used obscene language, so as to instigate her in public and thereby committed punishable offence u/s. 504 of I.P.C.
Moreover, at the same place and time, you the accused, by possessing sharp edged axe and by hitting with the sharp edged axe on the left side of her neck and backside, with a motive to murder Alkaben, caused her death and murdered her and thereby committed the offence punishable u/s. 302 of I.P.C.”
3. One Sadaji Kalaji Thakor lodged a complaint against the accused person in Agathala Police Station vide CR No. 75 of 2004 under Sections 302 and 504 of IPC, thereby alleging that the deceased, namely, Alka, was his daughter who was married at Jorapura village earlier, but the said marriage ended in divorce and thereafter, her second marriage was solemnized with Thakor Rameshji Pratapji at village Deka about three years prior to the date of incident. According to the complainant, the accused was also earlier married with a lady at Shergadh but he had driven away his first wife. According to the complaint, the deceased had one son born in the wedlock with Ramesh Thakor, the accused. The complainant stated that the deceased had got typhoid fever about two months back, as a result, she was brought back to the house of the complainant and the accused took her back four days prior to the day of the incident. While in the paternal house, the deceased had told the complainant that her husband used to suspect her about her character, but the complainant did not pay any attention to such allegation. On the day of incident, when the complainant had gone to Lakhani and had come back to his house at Manaki, at about 5.00 O’clock in the evening, one Bhangi Bababhai of Agathala had come to his house with a jeep and informed him that Alka had been given blow of axe by her husband and she had been admitted in the hospital at Deesa. After hearing the aforesaid news, immediately, the complainant with his wife and the sons of his brother left for Deesa. When they reached the hospital, they found Alka lying dead. It appeared that she had sustained sharp wound on her neck and another wound had occurred in the back part of the shoulder. Her parents-in-law were present there and when asked, her father-in-law stated that the husband of the deceased used to suspect Alka of her character and was abusing Alka since morning and at about 11.30 in the morning, when Alka was sitting in the compound, Ramesh had given her two blows in quick succession by axe; one blow was given on the neck and another blow was given behind the shoulder in the back and as such, Alka had then collapsed by shouting, while the accused had run away with the axe.
4. On the basis of the aforesaid complaint, investigation started and the case, ultimately, came up for trial before the Court of Session under Sections 302 and 504 of IPC.
5. The accused denied the charge and claimed to be tried.
6. The prosecution examined the following witnesses in support of its case:
7. The prosecution also produced the following documentary evidences:
8. The learned Sessions Judge recorded statement of the accused under Section 313 of the Code of Criminal Procedure [“Cr.P.C.” for short]. According to the accused, at the time of the incident, the uncle of his wife, namely, Hiraji Karamsiji, PW - 7, was found to be in compromising position with the deceased in a room situated in their farm and the accused, after seeing such incident, came out in the courtyard, took an axe and when he tried to give a blow to Hiraji, his wife intervened and in rage, the blow of axe had been received by his wife.
9. The accused, however, did not lead any evidence in support of his defence. As indicated earlier, the learned Sessions Judge, by his order impugned in this appeal found the appellant guilty of the offences and imposed the sentences indicated earlier.
10. Being dissatisfied, the accused person has come up with the present appeal.
11. Mr. Mrudul Barot, the learned advocate appearing on behalf of the appellant, at the first instance, tried to convince us that this is not a case of murder as the wife intervened when the accused being provoked by unnatural behaviour of his wife and her uncle, brought an axe and in the process she was injured.
12. Secondly, Mr. Barot drew our attention to the fact that in this case, it appears from the record that the father of the appellant had written a letter being exh. 2 to the Presiding Officer of the Second Fast Track Court, Banaskantha, intimating that the accused was mentally retarded and he was not able to defend himself properly and, therefore, necessary order in this regard should be passed. It further appears that the learned court below was of the view that till the accused’ state of mind and ability was not decided or till the accused did not become sound and competent to defend himself, it was not possible to proceed with the proceedings of original case against the accused and hence, it was felt necessary that proper treatment by a psychiatrist be given to the accused and when the proper evidence about the state of mind of the accused would come on record before the Court, appropriate order would be passed for providing help from legal aid. The Court ultimately ordered that the jail authority of Sub Jail, Palanpur, should treat the accused by a psychiatrist and if required, he should be sent to a hospital for mental health and information about the treatment provided to the accused should be furnished to the court regularly. The jail authority was further directed that after the treatment, as and when the accused would be in proper state of mind, fitness certificate of the psychiatrist to that extent should be obtained and produced before the Court. Thus, the learned Judge further ordered that during the treatment of the accused’s mental illness, necessary legal aid at government cost should be provided to the accused for production of required representation and evidences and if required, an advocate be appointed for the accused’s defence from the panel of advocates and legal aid should be provided to the accused. The learned Sessions Judge postponed the proceeding till the treatment of the accused was complete. Pursuant to the said order, the accused was transferred for treatment to Mental Hospital, Bhuj on August 7, 2012. After such treatment, it appears that the Court proceeded with the trial and at that stage, the accused did not take any plea of mental illness and the trial proceeded wherein accused was represented by a private advocate.
13. Mr. Barot strenuously contended before us that in this case, there has not been proper representation of his client in the trial court and as such, this Court should take proper step for ascertaining the mental condition of the accused. In support of the said contention, Mr. Barot placed before us two decisions of the Supreme Court, one in the case of Ratan Lal v.The State of Madhya Pradesh, reported in 1970 [3] SCC 533 and the other, in the case of Durga Domar v. State of M.P., reported in [2002]
10 SCC 193. In both the aforesaid cases, the matter went to the Supreme Court arising out of death sentence imposed by the High Court and for the purpose of considering plea taken under Section 84 of IPC, the Supreme Court decided to investigate further for the veracity of the said defence. By relying upon those decisions, Mr. Barot tried to convince us that we should also investigate further on the question of mental illness of the appellant. We are afraid, the principles laid down in those decisions have no application to the facts of the present case in view of the fact that in those cases, the matter arose out of death sentence and additional duty was cast upon the Court under Section 367 of Cr. PC., which is quoted below:
“367. Power to direct further inquiry to be made or additional evidence to be taken -
(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court.”
14. In the case before us, the Court having passed the order of life imprisonment, the benefit of the aforesaid provision of Section 367 of Cr.PC cannot be availed of by the appellant and thus, no defence of insanity having been taken in terms of Section 84 of IPC before the trial court, Mr. Barot cannot, now, pray for giving additional evidence on the aforesaid point.
15. At this juncture, we may profitably refer to the following observations of the Supreme Court in the case of Sudhakaran v. State of Kerala reported in AIR 2011 SC 265 where the said court discussed in detail about the scope of application of Section 84 of the IPC including the onus of proving the facts entitling such benefit and observed as follows:
“8. The scope and ambit of the Section 84 of the Indian Penal Code also came up for consideration before this Court in the case of Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109 : AIR 2009 SC 31 in which it has been held as follows:
"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 IPC. The 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."
9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.
10. Next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 : (AIR 2001 SC 3828), in which it has been held as follows:
"9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
10. In State of M.P. v. Ahmadull, AIR 1961 SC 998, this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV.
11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought."
(Emphasis supplied by us).
16. In the case before us, the appellant not having raised even the defence of insanity at the time of trial nor having adduced any evidence in support of such a defence, is precluded from raising such a plea at the appellate stage. We, therefore, overrule the aforesaid contention of Mr. Barot for giving further opportunity to lead any evidence.
17. So far as the involvement of the appellant in killing of the deceased is concerned, it appears that in the further statement under Section 313 of the Cr.P.C., the appellant has specifically admitted his involvement in the killing of his wife, but has taken a plea that he was provoked by the unusual behaviour of the deceased when she was involved in compromising position with her uncle, PW 7. It appears that apart from PW 7, his wife, PW 6, has also given evidence stating that when the deceased was sweeping the corridor, the accused came with axe and had killed her. On going through the evidence of PWs. 6 and 7 and after taking into consideration the fact that the incident occurred in the open courtyard, we are unable to accept the aforesaid version of the appellant taken in the further statement recorded under Section 313 of the Cr.P.C. By merely putting a suggestion to PW 7, the accused cannot prove such fact. It is needless to mention that when all the members of the family were present in the residence of the deceased, the incident occurred and thus, the allegation that the deceased was in compromising position with PW 7 is a cooked up story. Nothing could be elicited from the cross-examination of the PW-6 and PW- 7 for which they should be held to be unreliable witnesses.
18. It appears that the learned Sessions Judge, on consideration of the evidence on record and on taking into consideration the medical evidence given by the concerned doctor has rightly come to a conclusion that by the blow of axe, the deceased died and it was the accused who inflicted axe blow, being suspicious of the character of the deceased, his wife, which was, of course, a baseless suspicion.
19. We, thus, find that there is no scope of interference with the well reasoned judgment delivered by the learned Sessions Judge and particularly, when the accused had admitted his involvement in his further statement recorded under Section 313 of the Cr.P.C., but the plea that he was “provoked by the behaviour” of the deceased, could not be established.
20. The appeal being devoid of merit is hereby dismissed. The judgment and order dated July 31, 2006, passed by the learned Additional Sessions Judge, 1st Fast Track Court, Deesa, Banaskantha, in Sessions Case No. 58 of 2005 is hereby confirmed.
[BHASKAR BHATTACHARYA, CJ.]
[J.B. PARDIWALA, J.]
pirzada/-