Alex Martin Fernandes v. State — 1988 DIGILAW 228 (BOM)

JUDGMENT Dr. Couto, J. - This appeal by the original accused is directed against the judgment. Dated 21st January, 1988, whereby the learned Sessions Judge, Panjim, convicted him under section 302, Indian Penal Code and then, sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default, to undergo a further period of one year of imprisonment. 2. The appellant was charged with the murder of his own wife Flory Fernandes, on the grounds that during the night of 25 to 26 May, 1987, he stabbed her to death in his own residential house. The appellant admitted having stabbed his wife but sought to justify his conduct by saying that the deceased was having illicit relations with other men and that even in his own presence, she used to speak to other men in a manner that was bound to create doubts about her fidelity. The learned Sessions Judge however, after examining the evidence adduced by the prosecution, held that the charge has been duly proved and consequently, convicted the appellant under Sec. 302, Indian Penal Code and sentenced him to life imprisonment. 3. The appellant challenges his conviction and consequent sentence passed against him, mainly, on two grounds, viz. (a) that he was not of sound mind at the relevant time of the offence, and therefore, was unable to know that he was doing or the consequences of his acts; and (b) that in any event, the learned Sessions Judge ought to have appointed an advocate in order to enable him to defend himself in a proper and effective manner. Elaborati no the above grounds of challenge, Mr. Palha, the learned Counsel appointed under the Legal Aid Scheme to defend the appellant, submitted that the evidence on record clearly indicates that the appellant was not of sound mind at the relevant time of the offence, and taking us through the impugned judgment, further contended that the learned Sessions Judge having correctly found that the appellant was under the obsession, although without sound basis, that his wife was misbehaving and was unfaithful to him, ought to have given him the benefit of the Exception of section 84, Penal Code, as it indicates that the appellant committed the fatal assault due to jealousy and in this state of mind, he did not know what he was doing and its consequences. Mr. Mr. Palha next contended that in any event, the learned Sessions Judge ought to have appointed an advocate to defend the appellant inspite of his declining to have an advocate appointed by the Court. 4. It is clear from the above submissions of the Mr. Palha that the main thrust of the appellant's case is that his conduct is covered by the Exception of section. 84 of the Indian Penal Code, Section 84 of the Indian Penal Code 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. But as rightly pointed out by Mr. Bhobe, the learned Public Prosecutor, the burden of proving that a person is of unsound mind and incapable of knowing the nature of his act at the time of doing it, entirely lies on the accused, and in order to attract the provision of section 84, it is necessary that the unsoundness of mind should be so complete that the person who is acting is incapable of knowing the nature of his acts, or that he is doing some thing wrong or contrary to law. In 'Dahyabhai Chhaganbhai Thakkar v. State of Gujarat1, the Supreme Court has indeed observed that when a plea of legal insanity is set up, the Court has to consider whether at the time of the commission of the offence, the accused by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law, the crucial point of time for ascertaining the state of mind of the accused being the time when the offence is committed. The Court further laid down that whether the accused was in such state of mind as to be entitled to the benefit of section 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime. The Court further laid down that whether the accused was in such state of mind as to be entitled to the benefit of section 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime. Similarly, in Bhikari v. The State of Uttar Pradesh2, the Court observed that section 84 of the Penal Code can be invoked by the accused for nullifying the evidence produced by the prosecution and this can be done by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Pertinent is also what the Supreme Court said in Sherali Wali Mohammed v. State of Maharashtra3, to the effect that the law presumes every person of the age of discretion to be sane, unless the contrary is proved and that it would be most dangerous to admit the defence of insanity upon arguments derided merely from the character of the crime. We may also make with advantage a reference to the decision of the Orissa High Court in Sukru Sa v. The State of Orissa4. The Division Bench of the Orissa High Court held in that case that to establish a ground of insanity, it must clearly to be proved that at the time of committing the act, the accused was labouring under such a defect of reason from the disease of the mind as not to know the nature and quality of the act, or if he did know it, that he did not know that he was doing what was wrong. The mere fact that on former occasions the accused had been subject to insane delusions or had suffered from derangement of the mind, or that subsequent to the occurrence he had at times behaved like a mentally deficient person, is, per se, the Court observed, insufficient to bring his case within the Exemption contemplated in section 84 of the Penal Code, the antecedent and consequent conduct of the accused being relevant only to show the state of his mind at the time the act was committed with which alone the Court is concerned. This being the law, it is necessary to see whether the evidence on record establishes that at the relevant time of the commission of the offence, the accused was of unsound mind and that he was not as such condition of knowing the nature of his acts or that he was doing what was wrong and contrary to law. 5. There were no eye-witnesses to the murder, but from the evidence of P.W. 1 and P.W. 2 who are respectively the daughter and the son of the appellant, it clearly flows that after they left the house, only the deceased, the appellant and two small kids were in the house; that at about 1 a.m. on that fateful intervening night of 25th to 26th May, 1987, they found that both the doors of the house were locked from inside and peeping through the key hole, they saw their mother lying on the ground in a pool of blood; that at that time, the appellant was walking insides the house; and that they went to call for help and when they returned, found the back door of the house open and the accused no more inside. The evidence further shows that at about 1.15 a.m., the appellant went to the Police Station and informed the Station House Officer that he had killed his wife by stabbing her. This conduct of the appellant clearly indicates that he knew the nature of his acts and further, that his acts were punishable under the law. There is nothing else on record to warrant the inference that the appellant was of unsound mind and was not knowing what he was doing at the time of the fatal assault. No doubt, the evidence overwhelmingly establishes that the appellant was obsessed by a sickening jealousy, maniacally charging and thinking his wife to be unfaithful to him. In all other aspects, however, the appellant had been acting as a normal person and he very well knew the consequences and the nature of his acts. This evidence indicates that the appellant is a paranoid, who except for the obsession that his wife was unfaithful to him was entirely normal and able to know the nature of his acts. In all other aspects, however, the appellant had been acting as a normal person and he very well knew the consequences and the nature of his acts. This evidence indicates that the appellant is a paranoid, who except for the obsession that his wife was unfaithful to him was entirely normal and able to know the nature of his acts. Thus, this kind of mental insanity is not sufficient to bring him within the purview of the Exception of section 84 of the I.P.C. We may mention, at this stage, that as observed by the Supreme Court in Dayabhai Chhaganbhai Thakkar's case (supra), the doctrine of burden of proof in' the context of the plea of insanity requires that (1) the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, such burden always resting on the prosecution from the beginning to the end of the trial and (2) there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by section 84 of the Penal Code, i.e., 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 i:; no higher than that rests upon a party to a civil proceedings. It was seen that there is no evidence whatsoever to make us hold that the appellant was not of sound mind at the relevant time of the fatal assault. In fact, apart from the evidence adduced by the prosecution, there is nothing else on record indicating that the appellant was suffering from any mental infirmity which was enabling him from knowing the nature of his acts and the consequences thereof. He did not adduce any evidence and in the circumstances, it is not possible to accept the contention of Mr. Palha that the accused should be given the benefit of the Exception of section 84 of the Penal Code. We may add that a reading of the confessional statement made by the appellant before the learned Judicial Magistrate First Class, Mapuca, a few days after the commission of the offence, clearly shows that he was entirely lucid and with a sound mind; and this corroborates our above finding. We may add that a reading of the confessional statement made by the appellant before the learned Judicial Magistrate First Class, Mapuca, a few days after the commission of the offence, clearly shows that he was entirely lucid and with a sound mind; and this corroborates our above finding. He has indeed answered the questions posed to him by the learned Magistrate before the confessional statement was made, in a most coherent manner leaving no margin for doubts as regards his mental sanity and making the learned Magistrate to believe that he is of sound mind. A similar finding was also arrived at, and rightly, by the learned Sessions Judge. 6. But, although we find that the appellant's actions are not covered by the Exception of section 84 of the Indian Penal Code, we think that the evidence on record makes it rather doubtful that he has committed an offence of murder, and it appears that the conduct and the actions of the appellant are attracting the Exception 4 to section 300 of the Indian Penal Code. We say so because the version of the incident given by the appellant in his confessional statement cannot be ruled out as it gets some corroboration in the medical evidence. The appellant has, in fact, stated in his confession before the learned Magistrate, Mapusa, that on the night of 25th May, 1987, his wife and he went to sleep and at that time, he told the deceased that her mother had fainted because of her indecent behaviour. He further stated that the deceased got angry and switching on the lights, started shouting. He took the knife in his hand and in the course of the ensuing quarrel, he stabbed his wife on the stomach. The knife slipped away from his hand and the deceased, removing it from her body, tried to hit him with it. He therefore, caught the knife and got in the process injured on his hand. Thereafter, he hit her again with the knife. The medical evidence, namely the Medical Certificate Exh. P.W. 12/B shows that the appellant had stab wounds in the palm of his right hand, as well as a contused lacerated wound around the little finger of the left hand. Thereafter, he hit her again with the knife. The medical evidence, namely the Medical Certificate Exh. P.W. 12/B shows that the appellant had stab wounds in the palm of his right hand, as well as a contused lacerated wound around the little finger of the left hand. These injuries corroborate to some extent the version of the appellant, and it cannot be ruled out in the background that for years together the appellant had been pestering his wife with his unjustified and unfound doubts about her fidelity, that she got angry when charged to have caused her mother to faint in shame because of her alleged misbehaviour and picked up a quarrel in the course of which the appellant assaulted her fatally. In these circumstances, we think that the conduct of the appellant falls within the Exception 4 to section 300, I.P.C. The assault was indeed made without pre-medition, in a sudden fit and in the heat of passion upon a sudden quarrel. This being so, we are of the firm view that the offence committed by the appellant is merely of culpable homicide not amounting to murder, punishable under. Part II of section 304 I.P.C., because although the medical evidence shows that there were in all 23 wounds caused by a sharp instrument, the conduct of the appellant Soon after the assault indicates that he was not intending to kill his wife. In fact, it appears that after being stabbed repeatedly by the appellant, the deceased asked for a glass of water and the appellant promptly gave it to her, and thereafter, went to put his two small grand children to sleep and left for the Police Station to inform that he had fatally assaulted his wife. This conduct does not justify a conclusion that the appellant had intention to kill his wife, but undoubtedly the repeated assaulted with a knife on the stomach and other parts of the body fully justify the interference that he acted with knowledge that he was likely to cause the death of his wife, as actually he caused. We, therefore, are of the view that the conviction of the appellant under section 302 is to be quashed and substituted by a conviction under Part II of section 304, I.P.C. 7. The appellant is an old man, aged about 62 years at the present. We, therefore, are of the view that the conviction of the appellant under section 302 is to be quashed and substituted by a conviction under Part II of section 304, I.P.C. 7. The appellant is an old man, aged about 62 years at the present. The facts on record brought by the prosecution itself, disclose that except for his paranoic mania that his wife was unfaithful to him, the appellant is a normal and peaceful man. J n these circumstances, we feel that the ends of justice justify some leniency in the passing of the sentence and that a sentence of seven years of R.I. will be sufficient. We also feel that the circumstances do not warrant sentencing the appellant to pay, in addition, a fine. The sentence of fine passed against him is thus also to be quashed. 8. In the view we have taken, it is not necessary for us to deal with the second challenge of Mr. Palha. We may only mention that the way the appellant cross-examined the witnesses and acted throughout his trial gives sufficient evidence that he was fully capable of understanding the proceedings which were going against him and to defend himself. He confessed that he fatally assaulted the deceased with a knife and in the circumstances, we find that no prejudice was caused to the appellant by not appointing an advocate to defend him during the trial. We may also mention that in any avert, the appellant himself declined to have an advocate though the learned Sessions Judge made such offer of appointment, being a fact that he appears to have sufficient income to engage the services of an advocate. 9. The result therefore, is that this Appeal partly succeeds and consequently, the conviction .of the appellant under section 302, I.P.C. and - the consequent sentence to life imprisonment and fine of Rs. 5,000/- are quashed and set aside. The appellant is instead of convicted under section 304 Part II I.P.C. and sentenced to undergo seven years of Rigorous Imprisonment. The period of detention already undergone by the appellant from 26th May, 1987, to be -set off against the sentence now awarded. 1. AIR 1964 SC 1563 . 2. AIR 1966 SC 1 . 3. AIR 1972 SC 2443 . 4. 1973 CrI. LJ 1323.