Carlos Basilo @ Polly D'Souza v. State — 1994 DIGILAW 488 (BOM)

JUDGMENT (ORAL) M.S. Vaidhya, J. - This appeal is directed against the judgment and Order dated 18th May, 1993 and 29th June, 1993 passed by the learned Sessions Judge, Panaji in Sessions Case No. 86/90 on his file convicting the present appellant of the offence punishable under Section 302 I.P.C. and sentencing him to suffer rigorous imprisonment for life. 2. The prosecution case, in brief, was that the appellant Carlos alias Polly was living in some part of a house bearing No. 609 at Vagator and in the remaining portion, deceased Georgy D'Souza and his father Isidor D'Souza were living. The accused/appellant was living all alone inasmuch as his sister, who was a married woman, was living at Bombay and he had lost his mother. It is hinted by the prosecution that the relations between the appellant on one hand and the victims on the other hand were strained probably because of some property dispute of the house itself. On that background the incident in question is alleged to have taken place on 6.9.1990 at about 12.30 mid-day. On that day deceased Georgy along with P.W. 6 Alex Fernandes were untying the fishing net in the balcony of the said house and deceased Isidor was sitting on a chair in the balcony reading a newspaper. The appellant is alleged to have entered from the road side, compound of the premises raising a slogan, as it were, that nobody should live in that house. Georgy naturally asked him the reason therefor. The appellant is then alleged to have answered Georgy in an insolent manner asking him whether the house belonged to his father. Nothing further is said to have happened in pursuance of that dialogue, but according to the prosecution the appellant had entered his own residential -tenement and had come out with a wooden pole (described as 'danda'), The appellant is then said to have assaulted Georgy with that danda on his head as a result of which Georgy fell down in the Verandah. Blows of that danda are allegedly given to Isidor as a result of which he had also fallen down. P.W. 6 Allex Fernandes who was working with Georgy had jumped out of the house and had managed to escape, before the assault was made on Isidor. Blows of that danda are allegedly given to Isidor as a result of which he had also fallen down. P.W. 6 Allex Fernandes who was working with Georgy had jumped out of the house and had managed to escape, before the assault was made on Isidor. P.W.8 Maria, P.W. 11 Angelica D'Souza, P.W. 13 Jerone and P.W. 6 Alex are alleged to have witnessed the incident in parts. Many people gathered when the row was raised and a message was sent with P.W. 1 Hycinth Tinoko to the Calangute Police Station. Some policemen from the Police Station, who was not examined by the prosecution as a witness, is said to have arrived at the scene of offence as a result of the report made by Hycinth Tinoko and according to the prosecution story, the appellant had attempted to attack the policeman as well as the persons who had gathered there. It is also alleged that the accused pelted at the police officer a broken piece of the sai11 wooden pole. On the arrival of the police the onlookers are said to have overpowered the accused, beat him profusely and further to have tied down his hands so as to prevent him from moving away or committing any violence. 3. The offence of murder came to be registered and the investigations were taken over by P.W. 21, Police Sub Inspector Umesh Gaonkar, as he then was. Inquests were held on the two dead bodies, certain articles were seized from the scene of offence, from the house of Georgy and from the portion of house occupied by the appellant under a panchanama to which P .W. 7 Michael and P.W, 19 Ganpat Govekar were parties. The appellant was sent for medical examination and treatment to P.W. 15 Dr. Coutinho and the blood sample of the appellant was collected by P.W. 14 Dr. M. Mallya. P.W. 18 Dr. Usgaonkar conducted the post mortem examination on the dead bodies. The clothes of the appellant and both the victims were seized and were got examined through the chemical Analyser. After concluding the investigations, the charge sheet was submitted against the appellant for an offence punishable under section 302 of I.P.C. 4. For the purpose of decision of this case it is necessary to refer to certain papers which appear in the Miscellaneous file of the present case. The appellant was arrested on 6.9.1990 itself. After concluding the investigations, the charge sheet was submitted against the appellant for an offence punishable under section 302 of I.P.C. 4. For the purpose of decision of this case it is necessary to refer to certain papers which appear in the Miscellaneous file of the present case. The appellant was arrested on 6.9.1990 itself. On 7.9.1990 he was produced before the Judicial Magistrate F.C. Mapusa for remand. The remand report bears only the following order: "Heard the accused and the I.O. The accused is remanded to police custody for fourteen (14) days. sd/- 7.9.1990" Again, after the expiry of the initial police custody remand, the appellant was produced before the same Magistrate on 21.9.1990 at about 2.30 p.m. and the ordtrs passed on the remand were thus : "Accused present. No complaints. Accused remanded to 14 days J.C. sd/- 29.9.1990 at 2.30 p.m. From these two remand reports it may be noted here only it is evident that the Magistrate had not interrogated the appellant in any way to ascertain his mental condition or to ascertain on 7.9.1990 from him whether or not, he had any complaint against the police or against anybody else. Remands were granted from time to time to the appellant by the learned Magistrate's order dated 12thDecember, 1990. It may be noted that even in this committal order there was no reference to the mental condition of the accused particularly with a view to know whether or not, at the relevant point of time the Magistrate had found the appellant in normal mental condition. 5. It may also be noted here that the investigating .Officer, for reasons best known to him, had referred the appellant on 18.9.1990 to the Institute of Psychiatry and Human Behaviour when he had noticed that the accused/appellant was not mixing with the-general public and previously also he had attacked somebody in the family of the deceased. He had referred the appellant to the aforesaid Institute, according to his own version in the deposition, “to rule out the possibility whether he is psychic or otherwise". He produced on record a report which was marked Exh. A by the learned Sessions Judge, but which was not admitted in evidence for want of adequate proof, which showed that on 18.9.1990, the appellant was referred to the said institute "for the examination of his mental condition. He produced on record a report which was marked Exh. A by the learned Sessions Judge, but which was not admitted in evidence for want of adequate proof, which showed that on 18.9.1990, the appellant was referred to the said institute "for the examination of his mental condition. It is suspected that the accused is of unsound mind and a need is felt to a subject him for psychiatric test". The aforesaid letter was returned by the Assistant Medical Officer of the Institute of Psychiatry and Human Behaviour, Panaji with a remark, "Mr. Basilio D'Souza was admitted in I.P.H.B. on 4.11.1985 and discharged on 20th December, 1985. He was treated for schizophrenia and was taking treatment at O.P.D. level till 26.5.1986. He is still suffering from schizophrenia". It appears that this report obtained by the P.S.I. was not brought to the notice of the Magistrate who committed the appellant to the Sessions Court for trial nor was it brought to the notice of the learned Sessions Judge before the commencement of the trial. This document came on record only in the course of cross examination of the Investigating Officer at the fag end of the trial. 6. It is not in dispute that the appellant had lost his mother some years ago and that he was living all alone. It is also on record that his married sister was living at Bombay and she had once reported that the appellant was being treated for schizophrenia at J,J. Hospital since the year 1975. Out of the victims, Isidor was, probably, the Uncle of the appellant and Georgy was the cousin brother. Undisputedly, they lived in the family house. But the evidence on record shows that the appellant had all along preferred to live by himself and had not kept much association with his cousins or his Uncle. When the appellant was arrested in connection with this offence on 6.9.1990 there was therefore none near and dear to him, who had come forth to tale care of the appellant. Neither the police officials nor any of his neighbours appear to have mentioned it before the Magistrate that the appellant was a chronic schizophrenic patient. It was on this background that the fact that the learned Magistrate had granted remands to the appellant without even interrogating him while granting the remand, assumed considerable importance in this case. Neither the police officials nor any of his neighbours appear to have mentioned it before the Magistrate that the appellant was a chronic schizophrenic patient. It was on this background that the fact that the learned Magistrate had granted remands to the appellant without even interrogating him while granting the remand, assumed considerable importance in this case. Even after committal, there was none in the Sessions Court to move on behalf of the appellant the Sessions Court for the protection of the interest of the appellant till an Advocate came to be appointed to defend the accused under the Legal Aid Scheme. The roznama of the Sessions case indicates that after three adjournments in December, 1990 the case came to be posted on 10.1.1991 and it was on that day that Advocate Shri Dhond, came to be appointed as Amicus Curiae to defend the accused. Time was given then to Shri Dhond to take instructions and on the adjourned date i.e. on 21.1.1991, the learned defence Advocate mentioned before the Court that the appellant was not responding to what was being asked and that it appeared that the appellant was not mentally sound. He moved the Court for inquiry under section 329 of Cr. P.C. for determination of the issue whether or not, the appellant was a person of unsound mind and capable of making out his defence. The learned Sessions Judge then wrote a letter to the Superintendent of Institute of Psychiatry and Human Behaviour, Altinho, Panaji and then on 23.3.1991 he proceeded to record the deposition of witness No.1 Dr. Brahamanand Sinai Kuncolienkar. The aforesaid witness proved his report dated 8.3.1991 (Exh. l/A). It may be worthwhile to reproduce that report ad verbatim:- "Mr. Carlos Basilica was admitted in this institute on 31.1.1991 for observation for the purpose of Medical report. With available history from the records, observation in the hospital by me and the staff of the hospital and psychological testing, I have come to a following conclusion. Mr. Carlos Basilica D'Souza is a young man of dark complexion and average body built. At the time of admission he was untidy, unshaven, shabily dressed and would not cooperate freely for examination. He would get irritated if he is asked questions again and again. He was emotionally blunt and denied any hallucinations or delusions. He was started on treatment immediately and he is showing improvement. At the time of admission he was untidy, unshaven, shabily dressed and would not cooperate freely for examination. He would get irritated if he is asked questions again and again. He was emotionally blunt and denied any hallucinations or delusions. He was started on treatment immediately and he is showing improvement. His psychological tests also confirm that he is suffering from Chronic Schizophrenia with Residual symptoms. OPINION Mr. Carlos Basilica D'Souza is suffering from Chronic Schizophrenia with Residual Symptoms at present. He is fit to stand trial." It may be noted here only that this report did nor-make it clear whether or not, on the date of offence the appellant was in a normal state of mind. The evidence of the aforesaid Doctor Cuncoliencar was recorded only to ascertain whether or not, the appellant was in a position to understand the proceedings of the trial and to make out his own defence. It appears that the same Doctor was later on examined as a defence witness and that the said Doctor had given an elaborate history about the mental ill health of the present appellant. While deposing as a defence witness, it came on record that the appellant was an in-door patient in the hospital, admitted on 4.11.1985 under an order of the Magistrate, and at that time, his sister had informed that the appellant was taking treatment in U. Hospital from 1975 for the same disease. The appellant was an in-door patient in the Institute at Panaji in the period from 4.11.1985 to 20.11.1985 and therefore,' he had taken treatment at O.P.D. till 26.5.1986. He was again admitted in the Hospital on 31.1.1991. The finding was that the appellant was suffering from chronic schizophrenia which was confirmed by psychologist Dr. P.K. Chakravaty. Dr. Kuncolienkar was specific in telling that on the date of his examination of the patient, the appellant could not take care of himself. He told the period of schizophrenia could last for any duration from two weeks to 10 years. According to him, emotional apathy, emotional withdrawal lack of initiative and interest were some of the residual symptoms of schizophrenia which could be controlled by rehabilitation. According to him, hallucinations and delusion could be controlled by medication but otherwise, they could remain permanently. He told the period of schizophrenia could last for any duration from two weeks to 10 years. According to him, emotional apathy, emotional withdrawal lack of initiative and interest were some of the residual symptoms of schizophrenia which could be controlled by rehabilitation. According to him, hallucinations and delusion could be controlled by medication but otherwise, they could remain permanently. But, he indicated the possibility that under impulse such a patient might hit or kill any person without any reason in response to the hallucinations and delusion. According to him the appellant was treated as an out-door patient since 4.6.1992 after he was discharged from the hospital on 15.4.1991. According to him, neglect in taking the medicines could be the cause of repeated attack of schizophrenia. The Doctor confessed that he could not get any history from the appellant/accused when he was examined on 31.1.199l and even the police did not furnish him any history. Dr. Kuncolienkar was clear in saying that at the time of his examination the appellant was not able to understand and answer the questions. But subsequently, after the treatment, he could understand and answer the questions. It was at this stage that the trial had commenced before the learned Sessions Judge. There is no evidence on record that after his discharge, the appellant was on medical treatment all these years. 30TH AUGUST, 1994. 7. In order to satisfy ourselves regarding the medical history of the appellant, particularly, in the context of his long standing schizophrenia, we had requested Mr. Bhobe, the learned Public Prosecutor, to make available to us, if possib1e, the relevant record from the Mental Hospital. Accordingly, he made that file available to us today. This file contains record from the year 1985 (to be precise 4thNovember, 1985). It appears that, at that time, the police had taken charge of the insane person because, he had assaulted one man, namely, his uncle, who, according to the appellant, was playing mischief. The patient was under observation and treatment for quite some time and during that period even his uncle Isidor and his cousin as well as his sister who lived at Bombay, were interviewed by the authorities of the Mental Asylum. The patient was under observation and treatment for quite some time and during that period even his uncle Isidor and his cousin as well as his sister who lived at Bombay, were interviewed by the authorities of the Mental Asylum. It was recorded, as far back as on 10.12.1985, that the patient was a known case of schizophrenia and was treated in the U. Hospital, Bombay in 1975, when he was put on tablet Eskazin and E.C.T. The file recorded that thereafter, he stayed with his sister for some time but as he could not put on well there, he came to live with his mother. The file recorded, further, that his father had died long before 1982 and his mother had died some time in 1982 and since. Then, the appellant was a lonely person. The file contains a specific mention that the appellant had all along shown a tendency to keep by himself and not to mix up with anybody - The file also recorded that till the death of his mother, he used to have some sort of interaction with deceased Isidor and his cousin Georgy, but not much thereafter. He was discharged from the Hospital in 1986. Thereafter, the file reveals, he was brought to the Asylum, again, on 18.9.1990 by the police. The observation of his mental condition on 18.9.1990 as pointed out above vide letter marked 'A', which was tendered on record before the learned Sessions Judge, did not give a very clear picture about his mental condition immediately after commission of the alleged offence. The observations recorded in the file on 18.9.1990 read thus: "The patient cannot give information regarding himself and his family background. The patient reports on enquiry that he was treated by Psychiatric at Bombay, but details are not available. He also reported that he was admitted in this Hospital once in 1984. The Police Inspector who came with the patient and the police constable, give following information - Patient's father died many years back. He was working in studio: Mother died in 1982, while they were in Goa. Patient and his mother were in Goa (Vagator) in their own house since 1980. After the death of the patient's mother, the patient used to cook at times. He was working in studio: Mother died in 1982, while they were in Goa. Patient and his mother were in Goa (Vagator) in their own house since 1980. After the death of the patient's mother, the patient used to cook at times. Other times he used to eat from hotels with the money he used to get as interest of his investment in the Bank (i.e. Rs.150/-). At times, patient's sister used to send money from Bombay and patient also used to visit his sister at Bombay. Patient has only one sister who is married and is staying with her family at Bombay. The patient has his common family house at Vagator but no property of their own. Informant reports that the patient was always a lonely man, he was not communicative and was not mixing with anybody in the neighbourhood or even with the members of the family who were staying in the same house. On 6th of September, without any provocation, he argued with his cousin brother and on his excitement, he took a pole of cot and hit him on the head. When his uncle came, he hit him also with the same pole and both died immediately. Patient talks relevant. Hallucinations are not elicited. Persecutory delusions are elicited. He is oriented to person but not to time and place. He has no insight into his condition. According to the police constables, patient was eating and was talking relevantly. He was not cooperative and communicative like a normal person." It may be noted here only, may be at the cost of repetition, that the Police Inspector had referred the appellant to the Mental Asylum on his own when the aforesaid findings were recorded. That itself was indicative of the fact that the investigating machinery had felt that the appellant was not within himself and was not a normal person at the time when he was apprehended by the Police. 8. It is in this context that we may refer to the evidence of Dr. Coutinho, (P.W. 15), to whom the appellant was referred on the date of the offence itself Le. 6.9.1990. Having noted the injuries on the person of the appellant, the aforesaid witness had examined the patient to ascertain, whether or not, the appellant was under the influence of alcohol. Coutinho, (P.W. 15), to whom the appellant was referred on the date of the offence itself Le. 6.9.1990. Having noted the injuries on the person of the appellant, the aforesaid witness had examined the patient to ascertain, whether or not, the appellant was under the influence of alcohol. In that context, he noted the findings that he was conscious, cooperative and well-oriented in space and time and his breath smc1t of alcohol. Indeed, the aforesaid Doctor had collected 10 c.c. of blood from the body of the appellant for alcohol estimation. With all the efforts that we made to trace from the record, we do not find any report on the point of alcohol estimation in the blood. As against this particular observation regarding alcoholic smell, we had found in the file maintained at the Mental Asylum the history recorded right from the beginning till the end and it did not show that the appellant was ever known to be taking drinks or drugs and as per the version of his sister, he was hesitant even to take medicines prescribed to him. Another important fact to be noted, in this context, is that though the appellant was apprehended on the spot by his several neighbours and was tied with a rope, none of them had ever said that the breath of the appellant ever smelt of alcohol. We are really doubtful about the correctness of the findings recorded by Dr. Coutinho because, in the first place, there is nothing else on record to substantiate his finding that the breath of the appellant smelt of alcohol. Secondly, there is nothing in his evidence that recorded any abnormality in the mental condition of the appellant. When a little later, on 18th September, 1990, the Psychiatrists themselves had found the appellant not to be a normal person not cooperative and not oriented in space and time, it was difficult to accept the version of Dr. Coutinho that the appellant was really conscious, cooperative and oriented in space and time. At the end of his cross examination, Dr. Coutinho himself admitted that he did not enquire into the history of illness from the appellant as it was not relevant and he was not asked for by the police. Thus, in away, the examination of the appellant conducted by Dr. At the end of his cross examination, Dr. Coutinho himself admitted that he did not enquire into the history of illness from the appellant as it was not relevant and he was not asked for by the police. Thus, in away, the examination of the appellant conducted by Dr. Coutinho could hardly be a guide to the mental condition or the consciousness of the appellant on the date of the offence. We had to refer to this evidence at the outset, because this was one of the circumstances considered by the learned Sessios Judge to bring him to the conclusion that Dr. Coutinho's evidence gave an indication that the appellant-accused know fully well what he was doing and his mental condition was not impaired or affected at all at that time. To our mind, the learned Sessions Judge has fallen into the aforesaid error because, he had fallen in the error of not obtaining appropriately the record from the Institute of Psychiatry Human Behaviour, despite the fact that the report marked Exh. 'A' was placed on record, saying that right from 1984 the patient had a history of schizophrenia. As clearly seen from the observations made on 18.9.1990 in the file of the Institute of Psychiatry and Human Behaviour, the patient was definitely not in normal position and he had certain "persecutory delusions" and he was neither cooperative nor was he able to give the particulars about the space and time. Dr. Coutinho's evidence cannot be considered, therefore, as an evidence which could show that the appellant was in a normal state of mental health on the date of the offence so as to enable him to understand the nature of the act committed by him. 9. There is one other point which the learned Sessions Judge has missed. Almost every witness examined on behalf of the prosecution, happened to be a witness living in the vicinity of the residence of the appellant and the two deceased persons. Indeed, witness Angelica, (P.W. 11), was a cousin sister of the appellant and she had known the appellant as the member of the family since long. Despite this fact, each and every witness examined by the prosecution, when questioned regarding the mental condition of the appellant, was out to say that he or she, as the case may be, did not know, whether or not, the appellant was suffering from insanity. Despite this fact, each and every witness examined by the prosecution, when questioned regarding the mental condition of the appellant, was out to say that he or she, as the case may be, did not know, whether or not, the appellant was suffering from insanity. Again, almost each and every witness has stated that the appellant had never cared to wish to any other person or that the witnesses had ever talked with the appellant. The evidence of this sort given by almost all the witnesses makes one doubtful about the veracity of the witnesses on that point. It appeared that the witnesses did not want to unfold the prosecution story in a truthful manner, but they wanted to plead before the Court ignorance about the insanity of the appellant despite the fact that the appellant was known to them closely enough for several years. The learned Sessions Judge, appears to have grossly overlooked this fact and on that count, he had fallen in an error in thinking that the prosecution story that the appellant was sane and sober at the time of the commission of the offence was worthy of safe reliance. When the record showed that the appellant had a long history of insanity and that none had come forward to care for him till the commencement of his trial for the Offence, the Sessions Judge had a greater responsibility on him to ensure that no injustice was likely to occur to the appellant in the course of the trial. The learned Sessions Judge appears to have missed that point. 10. The learned Sessions Judge has rightly referred to a number of rulings about the burden of proof when an exemption under section 84 of the Indian Penal Code was claimed on behalf of the accused in defence of the prosecution launched against him. The distinction between medical insanity and legal insanity has been rightly recorded by him and he has rightly made out a proposition of the law that what the Court has to look to is the mental condition of the accused at the time of the commission of the offence. At the same time, we find that the decision of the Supreme Court in Ratanlal v. State of Madhya Pradesh1, was cited before him as also the decision in Sanna Eranna v. State of Karnataka (1983 Cri. L.J. 619). At the same time, we find that the decision of the Supreme Court in Ratanlal v. State of Madhya Pradesh1, was cited before him as also the decision in Sanna Eranna v. State of Karnataka (1983 Cri. L.J. 619). This Court had an occasion to discuss and apply the principle laid down in Ratanlal's case in Takappa Tamanna Lingardi v. State of Maharashtra2. It appears that this ruling was not cited before the learned Sessions Judge; but the principle laid down by the Supreme Court in Ratanlal's case, was the foundation of that case. The appellant before the Supreme Court had taken at the trial stage, a specific plea of unsoundness of mind at the time of the commission of the offence. The Supreme Court had observed that the accused was arrested on or about the date of the offence and had remained in police custody for about 10 days when it was found that he needed medical examination. His medical examination was ordered and made, but there was no evidence either to indicate his condition from the time of his arrest to the time when his case was referred for medical examination. The Supreme Court recorded those facts which were within the knowledge of the police and said that the court would have expected the prosecution to adduce evidence regarding the condition of the accused during the aforesaid time. Noting that the police had made It impossible for the appellant to prove his mental condition at the time of the incident by keeping him in their custody for 10 days from the date of arrest, not having him examined and send to judicial custody earlier where he would have been examined by a jail doctor, it was made impossible for him to prove his mental condition at the time of commission of the offence. In that case also, the defence had led evidence about the mental condition of the appellant-accused before the incident in question. In that case also, the defence had led evidence about the mental condition of the appellant-accused before the incident in question. A reference was made to the evidence of the prosecution witnesses on certain facts regarding the circumstances attending the alleged commission of the offence, certain antecedent circumstances and certain subsequent circumstances and it was, then concluded that the defence had discharged the legal burden to rebut the presumption in favour of sanity and had succeeded in proving that the appellant was not capable of understanding the nature of his act at the time of commission of the offence. The aforesaid decision of the Supreme Court as well as the decisions of this Court and, the Karnataka High Court, indicated the manner in which the trial Court should have dealt with the present appellant at the time of the trial. It appears, that the learned Sessions Judge had lost sight of the precautions that were expected to be taken by the Sessions Court before arriving at a conclusion as to, whether or not; the appellant had discharged his burden of proof for the rebuttal of normal presumption of sanity in favour of a person. The omission to consider the aforesaid rulings in their appropriate perspective has misled the learned Sessions Judge and has led him to commit certain error in the context of arriving at his conclusion about the mental state of the accused/appellant at the time of the commission of the offence.