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Karnataka High Court · body

2003 DIGILAW 865 (KAR)

STATE OF KARNATAKA v. RAJANNA

2003-10-17

body2003
SALDANHA, J. ( 1 ) WE have heard the learned Counsel representing the State and the accused in these two appeals. The extremely distressing facts briefly stated are that on the evening of 13. 6. 1995 at about 6. 45 p. m. the owner of a petty shop P. W. 1 Mustaq Pasha had kept his young son Sadiq Pasha in-charge of the shop and gone to visit a relation. The accused came there, and asked him for two cigarettes and when Sadiq Pasha asked him for the money he got enraged, caught hold of the boy, pulled him out of the shop, picked up a club and started hitting him with it. The boys mother Smt. Naseembanu ran to the rescue of her son Sadiq and very unfortunately the accused who appeared to be gripped by frenzy assaulted the mother with the same club and ran away from that place. The injuries inflicted were relatively serious particularly the head injuries as a result of which both mother and son died on the spot. The incident had been witnessed by numerous persons, there was no doubt about the identity of the assailant who was traced out by the police on the next day and arrested. The blood stained clothes were recovered at his instance. On conclusion of the investigation the accused was put up for trial and the trial court considering that this is virtually an open and shut case wherein there are 5 eye witnesses whose evidence is absolutely unimpeachable, recorded a conviction against the accused. ( 2 ) IT is very necessary for us to record that the defence pleaded was not one of denial. Obviously, on this evidence it would be close to absurdity to deny the fact that the accused had inflicted the injuries in question. The defence led the evidence of Dr. H. S. Venkatesh who is DW. 1 and he in turn produced exhibits D1 to D 13 which are the medical records of the accused. On the basis of these records, the defence contended that the doctor himself has diagnosed that the accused was suffering from Paranoid Psychosis which is incurable. It was also established that the accused had been treated at NIMHANS hospital for mental disorders about two years prior to the incident. On the basis of these records, the defence contended that the doctor himself has diagnosed that the accused was suffering from Paranoid Psychosis which is incurable. It was also established that the accused had been treated at NIMHANS hospital for mental disorders about two years prior to the incident. In other words, the defence sought to bring the case within the exception as prescribed in IPC under Sec. 84 on the ground that by reason of unsoundness of mind the accused was incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. The trial court has very carefully examined this contention particularly in the light of the 3 supreme court decisions reported in 1995 (1) Crimes, 711; 1990 (2) Crimes, 233 and AIR 1994 SC 1041 . These judgments however were pressed into service principally in order to justify the defence plea that these cases would not qualify for a conviction under Sec. 302 IPC but that Sec. 304 would apply in so far as it would constitute culpable homicide not amounting to murder. We shall deal with that proposition subsequently. ( 3 ) ON the more important issue relating to Sec. 84 IPC and the plea of insanity, reliance was placed on the following decisions: 1. 1991 Crl. L. J. 160, 2. 1985 Crl. L. J. 196, 3. 1987 Cr1. L. J. 618. On a consideration of the material placed before the court, the learned trial Judge recorded the view that irrespective of the mental condition that was pleaded on behalf of the accused, that the material placed before the court would only indicate that the accused suffered some mental infirmity and underwent treatment for it but that this was at an earlier point of time. The learned trial Judge on a careful analysis of the facts of the case recorded the conclusion that at the time, of the incident, there was absolutely nothing to indicate that the accused was mentally handicapped and that consequently, the defence pleaded was liable to be rejected. The learned trial Judge on a careful analysis of the facts of the case recorded the conclusion that at the time, of the incident, there was absolutely nothing to indicate that the accused was mentally handicapped and that consequently, the defence pleaded was liable to be rejected. The general behaviour of the accused as is evident through recreation of the incident is sufficient to establish that the accused could not be said to have been in such a mental condition that he did not know the nature and consequences of his act and on the basis of this finding, the defence plea was rejected and the accused came to be convicted. Having regard to the special features of the case a conviction was recorded under Sec. 304 Part II IPC and it is in respect of this conviction that the State has filed Crl. A. 1480 /1998 assailing the acquittal under Sec. 302 IPC and contending that the accused ought to have been convicted under this section and awarded a heavier punishment. On the other hand, the accused has preferred Crl. A. 1082/1998 challenging the conviction itself. We have heard both the appeals together in so far as they relate to the same incident and to the same judgment. We have done a very careful and thorough review of the record and after considering the submissions both factual and legal, we are disposing off both the appeals through a common judgment. ( 4 ) WITH regard to the conviction of the accused, despite the fact that elaborate arguments were advanced before us, there is absolutely no ground on which any interference is possible. The 5 persons who are examined as eye witnesses totally, fully and completely establish that it was the accused who assaulted the son first and then his mother on that evening and that pursuant to the savage attack both of them lost their lives. This evidence is 100% corroborated by the medical evidence and consequently, the finding recorded by the trial court on the basis of which the accused has been convicted is unimpeachable and stands confirmed. ( 5 ) THE next question is as to whether the defence of insanity pleaded is liable to be upheld. It is true, as pointed out by the doctor DW. 1 that the accused was diagnosed to be a person who is mentally disturbed. ( 5 ) THE next question is as to whether the defence of insanity pleaded is liable to be upheld. It is true, as pointed out by the doctor DW. 1 that the accused was diagnosed to be a person who is mentally disturbed. Secondly, it is also true that he had been treated at the NIMHANS hospital for the mental ailment. The defence plea however that this record would justify the invocation of the exception prescribed under Sec. 84 IPC, would not hold good. The law on the point is well settled in so far as in the first instance it is for the defence to establish the gravity and the depth of the mental ailment. In the field of psychiatry there is a broad spectrum of behavioural patterns that come within the general definition of mental ailment which includes strange behaviour, eccentric behaviour, situations wherein the person concerned may totally lose control of the senses for some time, etc, and what is required to be established by the defence is that the mental condition of the accused at the time when the act was committed was so very grave that it has been conclusively established that the accused could not have known either the nature of the act or the consequences of the act. The present record establishes the mental ailment of a relatively minor nature and consequently, on this ground alone the accused would be totally disqualified from the benefit of Sec. 84 IPC. Secondly, the evidence conclusively indicates that the accused was, for all intents and purposes, behaving quite normally and at the time of the incident it was very clear to him that he knew exactly what he had done and that this was the reason why he ran away from that place. Thirdly, the defence has not brought on record any vital evidence or timely evidence or contemporaneous evidence to indicate the mental condition on the date and time of the incident nor has any medical evidence been brought on record to show the condition of the accused immediately thereafter or even at a later point of time from which the court could evaluate his mental condition when the incident took place. What we are emphasising is that it is well settled law that when an exception is pleaded it is for the defence to establish it in other words the onus of establishing the exception or the benefit of exception shifts entirely to the defence. In the present case the trial court is right in having held that the defence has failed to establish the benefit of the exception. As a necessary consequence, if the exception is not available to the accused ipso facto the conviction recorded against him is liable to be upheld. ( 6 ) THE learned Government Pleader has very vehemently argued that this is a double murder case and secondly, that the number of injuries inflicted on the deceased and the conduct of the accused would squarely indicate that he knew and had reason to believe that the blows inflicted by him would cause death and that secondly, in respect of each of the deaths the accused ought to have been convicted and punished separately. The learned Counsel has seriously assailed the conviction under Sec. 304 Part II IPC because his submission is that when the accused assaulted the deceased persons with a club on vital parts of the body that it is very clear that his intention was to cause death and that consequently, the offence would come squarely within the definition of murder under Sec. 300 IPC. His submission is that this is a case which is covered by all the 4 sub-sections of Sec. 300 IPC and that the learned trial judge has seriously erred in giving the accused the benefit of Sec. 304 IPC on the ground that it constitutes culpable homicide not amounting to murder. The learned Counsel submits that the distinction between the two offences is very clear and before Sec. 304 Part II is invoked it will have to be established on facts that even though the act was done with the knowledge that it is likely to cause death, that there was no intention to cause death or to cause such bodily injuries as are likely to cause death. He therefore insists that this court must allow the State appeal and enhance the conviction to one under Sec. 302 IPC and consequently, that the sentence be stepped up. ( 7 ) MR. Bhagwan, learned Counsel who represents the accused has argued at length on the point of law. He therefore insists that this court must allow the State appeal and enhance the conviction to one under Sec. 302 IPC and consequently, that the sentence be stepped up. ( 7 ) MR. Bhagwan, learned Counsel who represents the accused has argued at length on the point of law. He lays emphasis on the fact that the court will have to very carefully review or re-create the incident from which it will be clear that the behaviour of the accused as has been established was totally irrational and not the type of conduct that one would expect from a normal human being. He points out that the deceased Sadiq Pasha was a young boy, that he had not in any manner offended the accused by asking for the price of the cigarettes and that there was absolutely no reason why the accused should have virtually flared up and gone into a frenzy and why he should have physically assaulted the deceased and then his mother who intervened without any justification. There is some substance in the factual aspect pointed out by the learned Counsel in so far as we do find that in the present case there was zero provocation from the side of the deceased, the parties did not know each other, there was no mutual hostility, the accused had not come there armed or with a pre-meditation to assault or commit murder and it is very clear that almost for no reason, the accused flared up and timed violent. While this could be attributed to his mental condition as established by the defence, that it would not be strong enough to bring him within the exception. It is perhaps as the learned Counsel Sri. Bhagwan points out be certainly good enough to give him the benefit of 2nd part of Sec. 304 IPC which prescribes that even if the act is done with the knowledge that it is likely to cause death that it is without any intention to cause death or such bodily injuries as is likely to cause death. Bhagwan points out be certainly good enough to give him the benefit of 2nd part of Sec. 304 IPC which prescribes that even if the act is done with the knowledge that it is likely to cause death that it is without any intention to cause death or such bodily injuries as is likely to cause death. The law presupposes, when the act is committed, that the mental process is required to be assessed and that is why the finer aspect of the intention comes in and in this case, we have no hesitation in upholding the defence plea that from the facts more importantly the medical condition of the accused that it would be impossible to hold that the act was done with the intention to cause death or such bodily injury as was likely to cause death. It is for this reason that we uphold the conviction under Sec. 304 Part II and we decline to enhance the conviction of one under Sec. 302ipc. ( 8 ) THIS does not mean that the appeal filed by the State is liable to fail. The alternate plea put forward by the learned State Counsel was that even though the accused was awarded a relatively heavy sentence of 6 years RI which he served, that this should be enhanced to the maximum of 10 years RI on the ground that two persons have lost their lives and that even if the conviction is not altered that the sentence ought to be enhanced. After hearing the learned Counsel at length on both sides, what we need to record is that the courts have as far as possible deprecated a situation whereby the accused person by virtue of something that happens many years later when the appeal is heard, is required to be sent back to jail. The courts have invariably held that this is extremely harsh because circumstances would have changed over the years and barring those instances where it is inevitable, that the court should always explore the possibility, even where the punishment is required to be enhanced, by doing so without a re-entry to the Jail. The accused has no criminal background, he is not a hardened criminal, he is an agriculturist, and obviously, the incident was most unfortunate, but we see no, useful purpose being served by re-consigning the accused to jail. The accused has no criminal background, he is not a hardened criminal, he is an agriculturist, and obviously, the incident was most unfortunate, but we see no, useful purpose being served by re-consigning the accused to jail. Rather than that we would prefer to impose a very heavy fine on him so that the PW. 1 Mushtaq Pasha who has lost his wife and young son can receive some alleviation, he being a very poor person who runs a petty trade through a small shop. Accordingly, in modification of the order passed by the trial court we enhance the fine by a further amount of Rs. 10,000/ -. No in-default sentence is prescribed. The accused is granted 3 months time to deposit the fine amount in the trial court failing which the trial court shall recover the fine amount from the accused. Thereafter, notice shall be issued to PW. 1 Mushtaq Pasha and the amount of Rs. 10,000/- shall be paid over to him. The trial court shall ensure that the earlier amount of Rs. 10,000/- has also been recovered irrespective of whether the accused has served the in-default sentence and the trial court shall therefore ensure that the total compensation of Rs. 20,000/- is received by PW. 1 Mushtaq Pasha. ( 9 ) CRL. A. 1480/1998 partially succeeds. Crl. A. 1482/1998 fails and stands dismissed. The bail bonds of the accused to stand cancelled. --- *** --- .