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2003 DIGILAW 449 (CAL)

ASHIS DEY BABLU DEY v. STATE OF WEST BENGAL

2003-09-01

AMIT TALUKDAR, PRAVENDU NARAYAN SINHA

body2003
AMIT TALUKDAR, J. ( 1 ) FEELING aggrieved with his conviction recorded by learned Additional Sessions Judge in Sessions Trial No. 10 September of 1991 on 3/3/1994 in respect of the charge under section 302 of the Indian Penal Code and sentence of imprisonment for life accompanied by a fine of Rs. 5,000. 00 the appellant hereinabove has preferred this appeal purely on the ground of section 84 of the Indian Penal Code. ( 2 ) SHRI Debasish Roy, learned counsel appearing in support of the appeal being assisted by Syed Shamsher Ali and Ranabir Roy Chowdhury has argued the appeal in great details. He has taken the pains to outline the entire evidence before us. He, in tune with the gravamen of the grounds restricted his submissions in respect of section 84 of the Indian Penal Code and submitted that the appellant squarely falls within the exception of the said provision and his conviction was liable to be set aside. Referring to the relevant witnesses Shri Roy submitted that the appellant was suffering from insanity before, during and after the incident and he was not in a position to comprehend his act; as such, the conviction, on the basis of a trial without resorting to the provisions of section 328 of the Code of Criminal Procedure, was not legal and liable to be quashed. ( 3 ) HE referred to the decision of Shrikant Anandrao Bhosale v. State of Maharashtra, and submitted that since the appellant was suffering from paranoid schizophrenia and had discharged his onus, as cast upon him under section 105 of the Evidence Act, he was entitled to the benefit under section 84 of the Indian Penal Code. ( 4 ) SHRI Ranjit Kumar Ghosal, learned advocate for the State has submitted that the appellant could not prove his case with regard to the insanity and the learned Trial Court very rightly convicted him and there was no merit in the appeal and it should be dismissed. He referred to the decisions of1. Dahyabhai Chhanganbhai Thakkar v. State of Gujarat, and 2. Sheralli Wali Mohammd v. State of Maharashtra, and submitted that since the appellant has failed to establish the onus, he cannot come within the purview of section 84 of the Indian Penal Code. He referred to the decisions of1. Dahyabhai Chhanganbhai Thakkar v. State of Gujarat, and 2. Sheralli Wali Mohammd v. State of Maharashtra, and submitted that since the appellant has failed to establish the onus, he cannot come within the purview of section 84 of the Indian Penal Code. ( 5 ) SHRI Ghosal submitted that as the appellant is raising a claim in support of insanity it is incumbent upon him to establish the said claim and Shri Ghosal by referring to the evidence on record submitted that the appellant could not make out a case in this regard and the appeal is therefore liable to be dismissed. ( 6 ) WE have heard Shri Roy and Shri Ghosal at length. Although in the ground of appeal as well as the submissions of Shri Roy, learned counsel for the appellant was restricted to section 84 of the Indian Penal Code we felt, as a First Court of Appeal when a Division Bench of this Court had admitted the appeal, it is necessary that the appeal has to be heard as a whole and not on any particular narrow point. We have the high authority of the Supreme Court in this regard: Re: Rabri Ghela Jadav v. State of Bombay. ( 7 ) AS such, although we have not been addressed on merit, apart from the question of insanity of the appellant, we have, in our own way, rummaged through the entire evidence and the materials on record on merit to consider the question as to whether the conviction recorded by the learned Trial Court can be legally sustainable irrespective of the question of section 84 of the Indian Penal Code. We will do so after we have traversed through the submission of Shri Roy touching on the question of section 84 of the Indian Penal Code. Now, we take up the submission of Shri Roy on the question of insanity. ( 8 ) FOR a profitable discussion it is necessary to refer to the provision of section 84 of the Indian Penal Code which is quoted hereinbelow: 84. Act of a person of unsound mind. Now, we take up the submission of Shri Roy on the question of insanity. ( 8 ) FOR a profitable discussion it is necessary to refer to the provision of section 84 of the Indian Penal Code which is quoted hereinbelow: 84. Act of a person of unsound mind. Nothing is an offence which is done by a reason who, at the time of doing it, by a per-son 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. From a plain reading of the provision of the said section it is amply clear that in order to recognise insanity to relate it as an exception to criminal liability should be one which disables the accused from knowing the character of the act during the commission of a criminal act it has to be proved that the nature of the act committed by the accused was not known to him then only can he be absolved of the responsibility of the crime. ( 9 ) LAW has been well-settled that the burden of proof with regard to the mental condition of the accused at the crucial point of time when the action was undertaken by him squarely lies upon him who claims the benefit of this exception and section 84 of the Indian Penal Code has to be read in juxtaposition with section 105 of the Evidence Act which reads as follows: 105. Burden of proving that case of the accused comes within exception. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. ( 10 ) THERE is a distinction between medical and legal insanity and the court has to abide by what is known as legal insanity and a person, only when he suffers from legal insanity on account of failure of cognitive faculty of mind which renders him incapable of knowing the nature of the act committed by him then only the provisions of section 84 of the Indian Penal Code can apply. Every type of unnatural behaviour or other type of unnaturalness which may be covered by medical insanity does not come within the purview of section 84 of the Indian Penal Code. It has to be proved that the accused at the relevant time, when the act committed by him, was fully incapable of comprehending the said Act. ( 11 ) NOW, it is only after the entire evidence is placed on record, the accused can show from the evidence on record either on behalf of the prosecution or by the defence the said presumption is removed. The presumption can be discharged by an amount of preponderance of probability and nothing more. ( 12 ) WITH this guideline let us evaluate the evidence on the question at hand. ( 13 ) FROM the Lower Court Record (G. R. Case No. 499 of 1988) and the record of the learned Trial Court we do not find that on any occasion the appellant took the plea of insanity; only during the trial that suggestion was put to P. W. 1 that the appellant was taken to the doctor, which was strongly denied by him; so also P. W. 2 denied that ever the appellant was out of his head. In the cross-examination of P. W. 4 it was stated that she heard inarticulate sound from the mouth of the appellant and that he chased everybody with a katari (Mat. Ext. III ). P. W. 3- the tractor driver of the family of P. Ws. 1 and 8 deposed that the appellant rushed towards him with a katari. P. W. 7 and P. W. 16, the nearby residents, deposed that the appellant was standing in the gate of the house of P. Ws. 1 and 8 with a katari and was giving threats to the persons. This is all we have from the foundation of the prosecution evidence. P. W. 7 and P. W. 16, the nearby residents, deposed that the appellant was standing in the gate of the house of P. Ws. 1 and 8 with a katari and was giving threats to the persons. This is all we have from the foundation of the prosecution evidence. ( 14 ) COUPLED with this, we have a letter produced by Shri Roy the learned counsel for the appellant during the course of his submission. The letter addressed by Superintendent of the Central Correctional Home, Midnapore to one Shri Hirendra Chandra Dey, maternal uncle of the appellant forwarding the medical opinion of the Medical Officer that he was suffering from paranoid schizophrenia, on which we are afraid, much reliance cannot be placed. ( 15 ) AS we have noted that the point relating to insanity was not taken at any earlier stage and for the first time in the grounds of appeal the same was agitated and also we were addressed by Shri Roy, learned Counsel for the appellant to this limited direction, we feel that Chapter 25 of the Code of Criminal Procedure containing sections 328 and 329 did not come into play. This has some importance. Had it been so, the question relating to insanity of the appellant would have been pointed out at the very outset before the committing Court or even at the inception of the trial by the defence; or, if it was actually so, demeanour of the appellant or his behaviour seemed to have been unnatural, both the Courts below would have taken recourse to sections 328 and 329 of the Code of Criminal Procedure, as applicable, respectively. ( 16 ) FROM a scanning of the record of G. R. Case No. 499 of 1988 we find that the appellant after his arrest from the spot by P. W. 21, was produced before the learned Sub Divisional Judicial Magistrate, Midnapore (Sadar) on 5/4/1988 and he was remanded to Jail Custody till 20/4/1988 accompanied by a prayer of the Investigating Officer for recording his confession under section 164 of the Code of Criminal Procedure. We also find that the learned Sub-Divisional Judicial Magistrate directed another Magistrate to record the said Statement and from the order sheet dated 8/4/1988 we find that the appellant declined to confess. We also find that the learned Sub-Divisional Judicial Magistrate directed another Magistrate to record the said Statement and from the order sheet dated 8/4/1988 we find that the appellant declined to confess. We further find that on 4/7/1989 the appellant was granted bail by the learned Magistrate and the appellant signed clearly on the bail bond. At the pre-committal stage the appellant did not make any whisper about the question of his insanity. ( 17 ) LET us now look into the proceedings of Sessions Trial No. 10 of September, 1991. We find that the learned Trial Court framed the charge against him on 17/1/1992, but he did not take any plea touching on the question of insanity Apart from that we find that the appellant effectively participated in the trial and barring the cross-examinations of P. Ws. 1, 2 and 4 on this aspect there is no foundation laid in respect of the claim of his insanity either during the prosecution evidence or from that of the defence, which will, of course, be discussed presently. ( 18 ) D. W. 1-the maternal uncle of the appellant. His evidence that he had informed both P. W. 1 and P. W. 8 about the appellant suffering from some mental disease and he received a telegram, was stoutly denied by P. W. 1; so also both of them denied the version of D. W. 1 with regard to treatment of the appellant by one Dr. Bal. P. W. 8 also denied that she ever accompanied D. W. 1 and the appellant to Calcutta for consulting D. W. 2. The evidence of D. W 1 does not seem to be very cogent and credit worthy. ( 19 ) D. W. 2, Professor (Dr.) Sital Ghosh, a former Professor of Medicine, Calcutta Medical College and Hospital whose evidence and prescription do not in any manner, impress us to come to the conclusion that the appellant was suffering from any form of mental disorder far from legal insanity. We have very closely assessed the evidence of D. W. 2, Prof. (Dr.) Ghosh and find that his diagnosis cannot be said to cover the question of legal insanity of the appellant and the said evidence also, in our view, is of no avail. We have very closely assessed the evidence of D. W. 2, Prof. (Dr.) Ghosh and find that his diagnosis cannot be said to cover the question of legal insanity of the appellant and the said evidence also, in our view, is of no avail. ( 20 ) SIMILARLY, D. W. 3, Asit Baran Patra, who was running a mental illness center by the name of Manasik Arogya Niketan Pvt. Ltd. , Burdwan where the appellant was stated to be under treatment since 30. 6. 1989. D. W. 3 deposed that the appellant was suffering from schizophrenia of paranoid type and hallucination and delusions associated with insomnia and aggressiveness. Strangely enough although the appellant was an indoor patient in the said center of D. W. 3 there was no paper to substantiate such claim. It has been very rightly found by the learned Trial Court that the period of internment under D. W. 3 coincided with the pre-committal stage; but, curiously enough no point in this regard was taken before the learned Magistrate. ( 21 ) NOW it is quite well-settled that the defence witness deserves equal treatment and the Court should treat it as per with the prosecution. If the defence witness tells a lie; so also does the prosecution and we are emboldened by the famous decision of the Supreme Court in Dudhnath Pande v. State of Uttar Pradesh. ( 22 ) AN open look has been taken by us to the evidence adduced by the defence; but we are afraid, the same does not, in any manner, retrieve the appellant and in fact, fails to impress us. ( 23 ) SHRI Roy the learned counsel has argued the appeal with much dedication touching on the question of legal insanity and that the appellant is protected within the provisions of section 84 of the Indian Penal Code, has received our anxious consideration. We are afraid, we cannot fall in line with Shri Roy. Not only did the appellant in his full sense decline to make any confessional statement under section 164 of the Code of Criminal Procedure on 8. 4. 1988; but notwithstanding the fact during his examination under section 313 of the Code of Criminal Procedure give the general answers to most of the questions- I do not remember. Not only did the appellant in his full sense decline to make any confessional statement under section 164 of the Code of Criminal Procedure on 8. 4. 1988; but notwithstanding the fact during his examination under section 313 of the Code of Criminal Procedure give the general answers to most of the questions- I do not remember. But he gave specific answers to question No. 7 with regard to his visit to the house of P. W. 1 thatthat was in the year 1986 and question No. 44 with regard to his visit to his sisters house that I visited Bakuls house. I visited my sisters houset and question No. 45 about P. W. 8, not agreeing to the marriage of his sister and his leaving the house that TIJ had also objection to the marriage of Mausumi with Bikash. and never raised the plea of insanity even at the stage of section 313 of the Code of Criminal Procedure. ( 24 ) WE have with utmost circumspection considered the decision of Shrikant Anandrao Bhosale v. State of Maharashtra (supra) relied upon by Shri Roy. We find that the said decision is of no help to him. In the present case the appellant did not take any plea with regard to the insanity at any point of time and for the first time in the grounds and at the time of argument the question of insanity was raised. From the said Supreme Court decision we find that the accused suffered from paranoid schizophrenia from much before the date of incident and was treated in a Government Hospital as an intern patient. The fact situation of the present case does not show that the appellant was suffering from any mental disorder; far less to speak of suffering from any legal insanity at the time when the incident took place. As such the decision of Shrikant Anandrao Bhosale v. State of Maharashtra (supra), in our humble view, can not be applied in the present case. ( 25 ) EACH and every type of unnatural behaviour cannot fall within the purview of legal insanity which is quite distinct from medical insanity. As such the decision of Shrikant Anandrao Bhosale v. State of Maharashtra (supra), in our humble view, can not be applied in the present case. ( 25 ) EACH and every type of unnatural behaviour cannot fall within the purview of legal insanity which is quite distinct from medical insanity. In order to prove that a person was suffering from legal insanity it has to be shown that his cognitive faculty of mind is destroyed as a result of unnatural mind to such extent so as to render him incapable to knowing the nature of the act he has committed. ( 26 ) THE burden of proof cast upon the appellant within the meaning of section 105 of the Evidence Act although can be discharged even by a preponderance of probability and no further; yet from the evidence of D. Ws. I, 2 and 3 and the cross-examination we cannot find the said burden has been discharged by the appellant in any manner and even from the cross-examination of the prosecution evidence the foundation of any such plea can be formed by a court. The decisions cited by Shri Ghosal for the State in Dahyabhai Chhanganbhai Thakkar v. State of Gujarat (supra) and Sheralli Wall Mohammed v. State of Maharashtra (supra), in our humble view, have square application as there is no evidence on record to show that at the relevant time when the incident took place the appellant was suffering from an unsound mind, which is the criteria for deciding the question of legal insanity and then only can it be said a person is suffering from legal insanity and only when a person was suffering from mental disorder before, during and after the time of the incident he can be said to be covered by section 84 of the Indian Penal Code. ( 27 ) FURTHER, we find from the evidence of P. W. 2 that on the fateful day after the appellant came to the house he asked for food from her and ate it; thereafter, he asked for some water and took out a bottle of rum seized under seizure list (Ext. 2/1) which he also consumed just before the macabre crime committed by him. The appellant was quite in his senses which would appear from such behaviour before the incident and during the incident. 2/1) which he also consumed just before the macabre crime committed by him. The appellant was quite in his senses which would appear from such behaviour before the incident and during the incident. The fact that he was threatening everybody by brandishing a katari (Mat. Ext. III) just after the incident, cannot impress us with the question of his insanity as we are of the firm view his post-incident conduct has nothing to do with the question of insanity. ( 28 ) ON the basis of the aforesaid discussions we find that the submission of Shri Roy that the appellant was suffering from legal insanity during the time of the incident cannot be accepted. That apart, we also find from the evidence of P. W. 8, which practically goes unchallenged, that the appellant who was an engineer by profession was still in service at the relevant time, had it been so that actually the appellant suffered from any mental disability the best evidence could have come forthwith from the place of his service. We also see from the evidence of P. W. 8 that she denied that suggestion of the defence the appellant had chased a woman in the tea-stall on the fear of being poisoned, which even if so true, cannot in any manner, in the absence of other convincing evidence, absolve the appellant from the crime. ( 29 ) NOW this brings us to the question of merit. As pointed out by us a criminal appeal admitted by the Court has to be dealt on merit within the mandate of section 386 (b) of the Code of Criminal Procedure, which read as follows: 386. ( 29 ) NOW this brings us to the question of merit. As pointed out by us a criminal appeal admitted by the Court has to be dealt on merit within the mandate of section 386 (b) of the Code of Criminal Procedure, which read as follows: 386. Powers of the Appellate Court After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no ground for interfering, dismiss the appeal, or may (a) ******************************** (b) in an appeal from a conviction (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and the extent, of the sentence, but not so as to enhance the same. ( 30 ) A criminal appeal, in our view, cannot be restricted to a particular arena as it has to be heard as a whole. The appeal was admitted by an earlier Division Bench on merit; it was not on any particular point and it cannot be so. We are duty bound, as a final court of fact, to examine, the evidence and arrive at our own conclusion on the entire materials before us as to the guilt or otherwise of the appellant. ( 31 ) POWER of the High Court in assessing the evidence is as wide as that of the Trial Court and we, with that mission in mind, feel that if we stop with the submission of Shri Roy a full-stop would be put to a legal right of an accused. ( 32 ) NOW to the merit. Little did little Prianka alias Pinki knew that it would be her Last Supper served by P. W. 2 in the fore-noon of the fateful day of April 5, 1988 before she was slashed in a mad- frenzy by the appellant with a katari (Mat. Ext. III) in her parental home before the eyes of P. Ws. 2 and 3. Little did little Prianka alias Pinki knew that it would be her Last Supper served by P. W. 2 in the fore-noon of the fateful day of April 5, 1988 before she was slashed in a mad- frenzy by the appellant with a katari (Mat. Ext. III) in her parental home before the eyes of P. Ws. 2 and 3. Now came P. W4, who saw lifeless Prianka in a pool of blood in the bedroom of P. Ws. 1 and 8. Before the house of horror stood the appellant with the weapon of offence (Mat. Ext. III) threatening everybody which was witnessed by P. Ws. 6, 7 and 10 and 13 and 16. P. W. 1, who rushed along with his wife (P. W. 8) to, the house, saw the appellant was tied with rope and pursuant to his information FIR (Ext. 8) was recorded by P. W. 19. He (P. W. 1) gave out a motive that over the dispute of disliking of the marriage of the appellants sister, Mausmi animosity grow between the family of P. W. 1 and P. W. 8, which was also corroborated by P. W. 8. ( 33 ) GORY details of the macabre incident has been narrated by P. W. 2, who saw the appellant arriving at the house just before the arrival of little Prianka and taking liquor, went out on the road and at first informed P. W. 6 about the incident which also attracted the attention of the others, who came immediately. The weapon of offence (Mat. Ext. III) was seized from the place of occurrence by P. W. 21 and the seizure list was signed by P. Ws. 13 and 15. The said katari (Mat. Ext. 2) was pointed out to the police by the appellant himself as deposed by P. Ws. 3 and 13 and that the appellant was holding katari and it is only after the attracted crowd started throwing stones the. said katari fell down, have been spoken uniformly by P. Ws. 6, 7 and 10, only demonstrates the presence of the appellant on the place of occurrence followed by the evidence of P. Ws. 2, 3, 4, 5, 6,7,10,15 and 16 showing the presence of the appellant with the katari at the relevant time in the house only goes to support the prosecution case. 6, 7 and 10, only demonstrates the presence of the appellant on the place of occurrence followed by the evidence of P. Ws. 2, 3, 4, 5, 6,7,10,15 and 16 showing the presence of the appellant with the katari at the relevant time in the house only goes to support the prosecution case. ( 34 ) SEVERAL injuries were found on the body of the deceased Prianka by P. Ws. 2, 3 and 1 as P. Ws. 2 and 3 deposed that little Prianka was slashed with the katari (Mat. Ext. III) by the appellant and P. W. 11 the Autopsy Surgeon found as many as 13 injuries on her person and according to P. W. 11 the injuries on the scalp was sufficient in the ordinary course of nature to cause death. He (P. W. 3) also identified the katari (Mat. Ext. III) as the weapon of offence. ( 35 ) TAKING in view the fact that the appellant was immediately arrested from the place of occurrence and apart from the ocular evidence of P. Ws. 2 and 3, the evidence of the attending witnesses, who came to the place of occurrence soon after Prianka was done to death being attracted by the scream of P. W. 2 is also relevant under section 7 of the Evidence Act. ( 36 ) EVEN if the motive of the crime spoken of by P. Ws. 1 and 8 does not seem to be clear as simply for the objection raised by P. Ws. 1 and 8 with regard to the marriage of Mausumi, sister of the appellant such a dastardly act could be committed by the appellant passes beyond our comprehension but, if truth is stranger than fiction how strange is truth itself? ( 37 ) ONE has to visualize the theatre where the script was written on blood and the tale told by the cursed parents (P. Ws. 1 and 8) and the near relative (P. W. 2) in the language of tears. ( 38 ) IF we have to decipher the motive we will only find blood and blood everywhere and what we find before us is cute baby Prianka, who had barely walked for six summers on this Earth when she fell to the incisive end of the katari (Mat. Ext. ( 38 ) IF we have to decipher the motive we will only find blood and blood everywhere and what we find before us is cute baby Prianka, who had barely walked for six summers on this Earth when she fell to the incisive end of the katari (Mat. Ext. III) ) wielded by the appellant and in the process got her tender person incised with as many as 13 injuries, as found by P. W. 11 the Autopsy Surgeon. ( 39 ) IMAGINE the horror and distrust in the eyes of little Prianka, who hitherto, in her infancy was accustomed to being cuddled, and receiving affectionate hugs, subjected to such a horrifying pain when she was repeatedly slashed before the taper of her life was extinguished and her life was extinguished and her mortal remains which, a few moments ago was the apple of eye of the parents (P. Ws. 1 and 8) and dear ones was immersed in the puddle of blood. ( 40 ) FANTASY lively little cheerful Prianka, the joy of P. W. 1 and P. W. 8 bouncing back from school with full of fun and from to her home and was being prepred to be rinsed with coconut oil before bring bathed by P. W. 2. Reality: Lifeless Prianka in a pool of blood with gaping wounds as wide as her startled eyes returning too soon to her creator pre-maturely. Reconciliation: While the soul of lovely little Prianka has merged into Etemity and her parents (P. Ws 1 and 8) drudge alone in the wideness of their despair where fate has ordained that the light of their lives be put off and have to suffer the distraught pain of losing their beloved prianka; we have to come to the conclusion with regard to the guilt and no other finding in respect of the perpetratre (the appellant) of the crime. ( 41 ) IF that be so, we are unable to reach any other conclusion than that arrived at by the learned Trial Court and have no hesitation to affirm the conviction recorded by the learned Trial Court and dismiss the appeal, having found no merit in the same. Appeal dismissed.