Ram Swarup Thakur v. State Of Bihar — 1999 DIGILAW 1044 (PAT)

Judgment 1. Appellant Ram Swarup Thakur was aged about 40 years at the time of his conviction. He has been convicted under Sec. 304, Part II of the Indian Penal Code and sentenced to seven years imprisonment by the Sessions Judge, Sitamarhi by judgment and order dated 5th July, 1989 in Sessions Trial No. 48/85. The appellant was tried for having committedmurder of his own son Santosh Thakur on 20-3-1984 in village Chak Donai P.S. Runnisaidpur in the district of Sitamarhi. 2. Learned Sessions Judge, however, has given his finding that the charge under Sec. 302, I.P.C. has been brought home against the appellant but without assigning any reason he has convicted the appellant under Sec. 304, Part II of the Indian Penal Code. 3. Only question that arises for consideration in this appeal is whether the finding of the trial Judge is vitiated for not recording categorical finding whether the appellant was suffering from legal insanity and therefore entitled for protection under Sec. 84 of I.P.C. Learned Sessions Judge has found that the appellant was perfectly sane at the time of his trial. Pertinent question to be decided was as to whether the appellant was insane at the time of committing the offence. Many circumstances have been noticed by the trial Court which gave rise to the plea of insanity. In para 17 of the judgment the trial Judge has observed that the appellant was ordered to be kept under observation and he was kept under observation and no clear report was received from any doctor that the accused was not behaving as a normal man. 4. It is useful to quote para 20 of the judgment of the trial Court :- "I am of thus considered opinion that when the crime was committed by the accused he was like a normal man. It has to be considered as to whether the offence committed by the accused will amount to culpable homicide amounting to murder or culpable homicide not amounting to murder. In the instant case the children of the accused were playing outside the house. The accused appears to have not liked their playing and it appears that he caught hold of the deceased son and he had beated him outside the house and thereafter he took him inside the house and cause injury on the person of his four years old son which proved fatal. The accused appears to have not liked their playing and it appears that he caught hold of the deceased son and he had beated him outside the house and thereafter he took him inside the house and cause injury on the person of his four years old son which proved fatal. I am of thus considered opinion that as father the accused wanted to chastise the boy and I find that he exceeded in chastising the boy and he not only assaulted the boy outside the house but he caused injury with a cutting instrument like Phansuli. No doubt in normal way father is expected to exhibit the affection towards minor children but at times possibility of chastising may not be overruled. In my considered opinion the act which was done by the accused was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. In the instant case the deceased boy was assaulted outside the house and again he was dealt with by his father inside the house with a Phansuli. This being the position I am of thus considered opinion that the offence committed by the accused will amount to culpable homicide not amounting to murder and this way the accused will have to be held guilty for the offence u/S. 304, Part II of the I.P.C." 5. The case against the appellant was registered on the information of the wife of the appellant Sunaina Devi who was not an eye witness to the actual occurrence. Sunaina Devi was working as a Maid-Servant at the house of Maheshwar Pd. Singh. According to her evidence, on 20-3-1984 she had gone to the house of Maheshwar Pd. Singh for cleaning utensils as usual. When she was working in the house of her Master her daughter Shiv Dulari aged about 5 years came weeping and informed that the appellant had caused injuries to her brother Santosh Thakur with Phansuli and taken him inside the room. Sunaina Devi immediately rushed to her house and saw that her husband was standing at the door of the east facing room and he was holding the wooden portion of the Phansuli in his left hand and in the right hand he was holding iron part of the Phansuli which was blood stained. Sunaina Devi immediately rushed to her house and saw that her husband was standing at the door of the east facing room and he was holding the wooden portion of the Phansuli in his left hand and in the right hand he was holding iron part of the Phansuli which was blood stained. When she went inside the western room she found her murdered child aged about 3 years lying on the ground and the dead body was stained with blood. She noticed that the neck of Santosh Thakur was cut and he was dead. When she raised alarm, people collected there. In the meantime the appellant fled towards Bagicha river with the blade portion of Phasuli. Sunaina Devi could not be examined during trial as she died in course of trial. 6. Chandreshwar Prasad Singh was examined as P.W. 5 This witness testified that the appellant used to behave like unsound man. This fact is corroborated by Moti Mandal (P.W. 6). 7. Shiv Dulari (P.W. 4) is the sole eye-witness of the occurrence. She stated that her father lived as a normal person and usually remained at home. He never assaulted the children. Learned trial Judgeinferred in the evidence of Shiv Dulari that the appellant was behaving in a normal way. The trial Judge has referred to certain orders of the Court to show that the appellant was sent to Ranchi for his mental treatment. Order sheet dated 11-10-1985 indicate that the appellant was reported to be not of sound mind and thereafter he was sent to Ranchi Mansik Arogyashala. The appellant was discharged from the Ranchi Mansik Arogyashala after he was found sane and capable of making defence, the statement of the appellant was recorded under Sec. 313, Cr. P.C. and he answered the questions as normal man. He stated that he was not mentally fit and he killed his son. 8. I am of the view that the judgment of the Sessions Judge convicting the appellant is absolutely unsound and cannot be accepted. Learned trial Judge under some mistaken impression did not consider the crucial point with regard to the mental condition of the appellant at the time the crime was actually committed. 9. 8. I am of the view that the judgment of the Sessions Judge convicting the appellant is absolutely unsound and cannot be accepted. Learned trial Judge under some mistaken impression did not consider the crucial point with regard to the mental condition of the appellant at the time the crime was actually committed. 9. In Ratan Lal V/s. State of M. P., AIR 1971 SC 778 : (1971 Cri LJ 654), the Supreme Court accepted the plea of insanity raised on behalf of the accused with the following observations : "We are inclined to agree with the conclusion arrived at by the learned Magistrate. We hold that the appellant has discharged the burden. There is no reason why the evidence of Shyam Lal, D.W.1 and Than Singh, D.W. 2, should not be believed. It is true that they are relations of the appellant, but it is the relations who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning of Sec. 84, I.P.C." 10. Appellants case is on some better footing in the sense that there was a report referred to above that the appellant was not sane when he was detained in Ranchi Mansik Arogyashala. After two years he was found sane and capable of making defence. 11. In State of Punjab V/s. Mohinder Singh, (1983) 2 SCC 274 . The appellant was acquitted on the ground of insanity because opinion of the doctors coupled with abnormal behaviour of the appellant were apparent from the evidence on the record. 12. In Kamla Singh V/s. The State, AIR 1955 Patna 209 : (1955 Cri LJ 825), Ahmad, J. sitting with Imam, J. referred to the English authorities and other High Courts. The appellant was acquitted on the ground of insanity because opinion of the doctors coupled with abnormal behaviour of the appellant were apparent from the evidence on the record. 12. In Kamla Singh V/s. The State, AIR 1955 Patna 209 : (1955 Cri LJ 825), Ahmad, J. sitting with Imam, J. referred to the English authorities and other High Courts. Their Lordships laid down the principle as follows : "In a case, therefore, where insanity is pleaded, two principles of onus run side by side but counter each other; one covering the general principles of onus on the prosecution to prove the case beyond reasonable doubt and the other demanding from the accused to prove his special plea of insanity, that is, his case falls within the General Exception of law laid down in S. 84, I.P.C. These two principles having opposite reactions, it is interesting to visualise as to where they meet and where the zone of one ends and the zone of the other begins. In my opinion, they operate simultaneously in the common zone from the inception of the trial to its closure and that even when special plea of insanity is pleaded and S. 105, Evidence Act, comes into operation, the principle of general onus has still to discharge its obligation and in no less degree than when no such plea is pleaded.That being so, the prosecution will succeed only when it is found at the end of the trial that the circumstances necessary to prove the case beyond reasonable doubt are not in any way weakened by those in favour of the special plea of insanity. This test, if correct, suggests that the quantum of onus that is contemplated by S. 105, Evidence Act, against the prisoner is that which should be enough to make the premise doubtful on the basis of which the prosecution has to discharge the onus, namely, that the prisoner was not of unsound mind and that he was capable of knowing the nature of the act alleged against him. In other words, the onus laid down in S. 105 does not demand that the evidence of insanity if pleaded should be proved beyond reasonable doubt as it is required to be done by the prosecution in proving its case. . . . . ." 13. In other words, the onus laid down in S. 105 does not demand that the evidence of insanity if pleaded should be proved beyond reasonable doubt as it is required to be done by the prosecution in proving its case. . . . . ." 13. The Division Bench quashed the conviction of the appellant with the following observations : "In my opinion, that by itself is not sufficient and that he should have also found he was capable of knowing that he was doing what was either wrong or contrary to law. Perhaps the learned Sessions Judge did not apply his mind to this aspect of the question.The statement of the prisoner referred to above may suggest that he was capable of knowing the nature of his act but I think that does not suggest that he was capable of knowing that he was doing what was either wrong or contrary to law. The history of the case to my mind suggests that the mind of the prisoner at the time he committed the assaults was completely deprived of the very conception of wrong either from the moral point of view or from the legal point of view, though he might be alive that his act resulted in finishing the lives of two persons. That being so, the prisoner has not only rebutted the presumption under S. 105, Evidence Act, but has also proved affirmatively that his case was covered by the exceptions laid down in S. 84, I.P.C., and, therefore, the appellant cannot be held guilty for the offence alleged against him." 14. In Dahyabhai Chhaganbhai Thakkar V/s. State of Gujarat, AIR 1964 SC 1563 : (1964 Cri LJ 472), the Supreme Court held "when a plea of legal insanity is set up, 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 was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Sec. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime." The Supreme Court, however, considered the relevant circumstances and found that the appellant did not murder his wife in a fit of insanity and dismissed the appeal. 15. In the present case, it was essential to examine the doctors who had treated the appellant at Ranchi Mansik Arogyashala. The trial Court has not given any finding on the crucial question about the mental condition of the appellant at the time of occurrence. It went astray in recording the finding that the appellant was sane at the time of trial. The serious lacuna renders the entire finding unacceptable. There are clear indication in the evidence of the witnesses that the appellant was not a normal person. He killed his own son who was aged 3 years for no apparent reason. No evidence was led by the prosecution with regard to the state of mind of the appellant during custody. There is one report from Ranchi Mansik Arogyashala that the appellant was not sane. The appellant was not provided any lawyer on State expenses when he was produced before the A.C.J.M. after his arrest. He should have been examined by Medical Board considering the nature of allegation against him. At some later stage, he was kept under observation and was also referred to Ranchi Mansik Arogyashala where was detained for about two years. All these facts lead to the conclusion that the appellant was not a normal man at the time he committed the crime. In any view of the matter, the prosecution, has failed to lead necessary evidence in this regard. 16. In the instant case, the appellant has been able to discharge onus to rebut the presumption that he was not insane when he committed the crime. In Dahyabhai case (1964 Cri LJ 472) (supra) the Supreme Court observed that the accused may rebut the presumption of sanity by palacing before the Court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. In Dahyabhai case (1964 Cri LJ 472) (supra) the Supreme Court observed that the accused may rebut the presumption of sanity by palacing before the Court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. The Supreme Court further held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. This principle of law applies to the facts of the present case. The appellant has been able to rebut the presumption. The prosecution has not discharged the onus by placing sufficient evidence to enable the Court to give a finding that the appellant was sane at the time of committing crime. The principle laid down by the Supreme Court in Dahyabhai Case (supra) answer the contention of Mr. Lala Kailash Behari Prasad, learned counsel appearing for the State that the appellant has not been able to prove that he was insane and to bring on record the evidence which should have been conclusive to show that he was insane. 17. In the result, for the reasons discussed above, I allow this appeal, set aside the judgment and order of conviction and acquit the appellant. 18. Before I part, I must record that Miss Pallavi Singh, who appeared as Amicus Curiae, has given very able assistance to this Court in reaching the right conclusion.Appeal allowed.