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2009 DIGILAW 250 (GAU)

Chiron Gogoi v. State of Assam

2009-04-09

BIPLAB KUMAR SHARMA, RANJAN GOGOI

body2009
JUDGMENT B.K. Sharma, J. 1. This appeal has arisen out of the judgment of conviction and sentence dated 16.11.2002 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 61 (DH)/2001 convicting the accused/Appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment (RI) for life and to pay a fine of Rs. 1000/- and in default to undergo RI for another one month. 2. Shortly stated the prosecution story is that on 13.7.2001 at about 5.00 P.M., the accused/Appellant gave a 'dao' blow on the neck of his mother, as a result of which she died. An FIR to that effect having been lodged with the Dhemaji Police Station, Dhemaji P.S. Case No. 72/2001 was registered under Section 302 IPC. 3. During investigation, the I.O. visited the place of occurrence. Inquest was held on the dead body and the report thereof (Ext. 4) was prepared. The dead body was sent to Dhemaji Civil Hospital and the postmortem report was obtained. Charge-sheet was submitted against the accused/Appellant under Section 302 IPC and the learned Judicial Magistrate, 1st Class, Dhemaji committed the case to the Court of learned Sessions Judge, the case being exclusively triable by the Sessions Court. 4. On receipt of the case on commitment, charge under Section 302 IPC was framed, explained and read over to the accused/Appellant to which he pleaded not guilty and claimed to be tried. The prosecution examined 8 witnesses to prove the charge. The defence examined none. However, his version of the case is total denial and his statement was recorded. 5. The learned Sessions Judge on the basis of the evidence on record and considering the matter in its entirety having convicted the accused/Appellant with the sentence as aforesaid, he has preferred the instant appeal. We have heard Mr. S.K. Medhi, learned Amicus Curie as well as Mr. Z. Kamar. learned PP, Assam. 6. While Mr. Medhi, referring to the evidence on record submitted that the accused/Appellant at the time of committing the offence was suffering from mental disorder and thus entitled to the benefit under Section 84 IPC, Mr. Kamar, learned P.P., Assam submitted that such plea on the part of the Appellant, going by the evidence on record, is wholly untenable. Referring to the decision of the Apex Court reported in 2009 Crl. Kamar, learned P.P., Assam submitted that such plea on the part of the Appellant, going by the evidence on record, is wholly untenable. Referring to the decision of the Apex Court reported in 2009 Crl. L.J. 372 Siddhapal Kamala Yadav v. State of Maharashtra, he submitted that the plea of unsoundness of mind having not been proved by the Appellant, he is not entitled to the benefit of Section 84 IPC. 7. We have given our anxious consideration to the submissions made by the learned Counsel for the parties as well as the entire evidence on record. From the evidence on record, it appears that only plea of the Appellant is that since he was suffering from unsoundness of mind at the crucial time, he is entitled to the benefit of Section 84 IPC. Learned Sessions Judge has disbelieved such a plea. From the record it appears that on conclusion of the prosecution case and having regard to the depositions made about mental disorder of the accused/Appellant, learned Sessions Judge by his order dated 16.8.2002 requested the Joint Director of Health Services, Dhemaji to examine the accused/Appellant regarding his mental strength and to furnish report. Accordingly, a Medical Board was constituted and upon examination of the accused/Appellant it was certified as follows: Government of Assam Office of the Joint Director of Health Service, Dhemaji No. JDHS/DMJ/M. Board/02/4604/ The District Medical Board was held today on 31st August/2002 at the Office of the undersigned to examine Sri Siran Gogoi, C/O Supdt. District Jail, Dhemaji Distt. Dhemaji to furnish a medical report in respect his illness under the Chairman of Joint D.H.S. Dhemaji. After through examination of Sri Siran Gogoi, the Medical Board opines that no abnormality is detected on his body. Sd/- Chairman District Medical Board, Dhemaji 8. PW 1 is the Secretary of Village Defence Party. He in his deposition stated about the hue and cry raised by inmates of the house of the accused/Appellant, hearing which he went there and found the deceased lying injured. He found the accused with a 'dao' and shouting. People gathered and the accused was apprehended and thereafter the village people informed the police. In his cross-examination, he stated that the Appellant was mentally ill. PW 2, PW 3, PW 4, PW 5 and PW 7 also stated about the incident. He found the accused with a 'dao' and shouting. People gathered and the accused was apprehended and thereafter the village people informed the police. In his cross-examination, he stated that the Appellant was mentally ill. PW 2, PW 3, PW 4, PW 5 and PW 7 also stated about the incident. All in their depositions stated that the Appellant, from sometime past, used to shout a lot and they thought that the Appellant was suffering from mental illness. PW 4 also stated about visiting Lakhimpur to bring a Bez (village doctor) to treat the accused. 9. PW 6 is the doctor, who performed the postmortem examination of the dead body. As per the postmortem report (Ext. 4), he found the following:- (1) The body was emaciated and there was rigor mortis; ante mortem bleeding over the right side of the neck. Old clothes stained with blood. (2) Right carotic artery seen cut and ruptured and cervical vertebra seen cut, spinal cord was exposed. Some frothy sepiction (sic) seen and the mouth. Lower abdomen swollen. The size of the cut is 6 cm x 4 cm x 3 cm in depth. Margins are regular. In my opinion, the woman died of severe haemorrhage due to the cut of the right side of carotic artery and cervical spinal cord. 10. In his cross-examination, he admitted that the type of weapon used for causing the above injury was not mentioned in Ext. 4 postmortem report and that the age and nature of the injury were also not mentioned in the report. 11. PW 8 is the IO, who stated about the investigation carried out and submission of charge-sheet etc. In his cross-examination, he had stated that no witnesses had told him that the accused was suffering from mental disorder. The suggestion put to him that every witness had told him about mental illness of the accused was denied. 12. PW 3 is the eye witness. She in her deposition stated about seeing the incident. At the time of occurrence of the incident on the particular day, she had gone to the house of the accused/Appellant to fetch her goat. The suggestion put to him that every witness had told him about mental illness of the accused was denied. 12. PW 3 is the eye witness. She in her deposition stated about seeing the incident. At the time of occurrence of the incident on the particular day, she had gone to the house of the accused/Appellant to fetch her goat. She could see that the accused/Appellant was cutting the tethers (rope) meant for the cattle and about that time the deceased came out and asked the Appellant as to why he was cutting the tethers, to which, immediate reaction of the Appellant was to say "I am cutting the tethers; because I have not been served my meal. I shall cut you too." Having said that he dealt with the cut blow with the dao on the neck of the deceased. PW 7 in his deposition stated as to how the accused after inflicting the injury to his mother tried to fasten the same with the Gamocha. 13. Above are the evidence, on the basis of which the accused/Appellant has been convicted. Section84 IPC deals with the act of a person of unsound mind. 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. To attract this provision, burden lies on the person, who claims to be of unsound mind. Law presumes every person of the age of discretion to be sane unless the contrary is proved. 14. In the instant case, all the prosecution witnesses have stated about the mental illness of the accused/Appellant. In Siddhapal (supra), on which, the learned P.P. Has placed reliance, the Apex Court has held that the onus of proving unsoundness of mind is on the accused. However, where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution and the benefit of doubt has to be given to the accused. However, where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution and the benefit of doubt has to be given to the accused. It has further been observed by the Apex Court that the crucial time for deciding availability of the benefit, is the time when the offence was committed. 15. That the accused/Appellant was under some kind of mental disorder at the time of occurrence of the incident has been proved on evidence by none other than the prosecution witnesses. Going by the reaction shown by the accused/Appellant to the query made by his mother is another factor supporting the same. This is precisely the reasons as to why after recording the deposition of the PWs, learned Sessions Judge had ordered for medical examination of the accused/Appellant. As to what transpired upon such examination has been noted above. The report of the Medical Board is of no help for a proper decision in the matter, as the said report only speaks of non-detection of any abnormality on the body of the accused/Appellant, while the said Board was concerned with mental health of the accused/Appellant. Apart from such infirmity in the report, it was the mental state of the accused/Appellant at the time of committing the crime, which mattered and not thereafter. 16. The Apex Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat reported in AIR 1964 SC 1563 dealing with the doctrine of burden of proof in the context of the plea of insanity stated about the propositions in paragraph 7 of the judgment thus: The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebutable presumption that the accused was not insane, when he committed the crime in the sense laid down by Section 84 of the Indian Penal Code: 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 is no higher that rests upon a party to civil proceeding. (3) 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 that 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. 17. In Kancha Munda vs. State of Assam reported in (2008) 4 GLR 801, under somewhat similar circumstances, this Court interfered with the judgment of conviction and acquitted the accused Appellant therein with the following finding and observation in paragraph 16. In the present case we find from the evidence on record that the accused himself did not take the plea of insanity. He simply pleaded not guilty. It is rather from the prosecution side that led the case of insanity of the accused/Appellant by adducing the evidence of PW 1 and PW 2. The prosecution has proved through the evidence of the PWs that the accused was mad since long and since he has been suffering from mental disorder he killed his wife. The accused did not adduce any evidence to disprove that he was not insane and thus it remained as proved that the accused was insane. Therefore, it has been proved on evidence by the prosecution itself that the accused committed the offence while he was in the state of mental disorder. 18. Following the aforesaid decision, this Court in another case reported in 2009 (2) GLT 65 Jatin Talukdar vs. State of Assam, more or less under similar circumstances, acquitted the Appellant interfering with the judgment of conviction. 19. 18. Following the aforesaid decision, this Court in another case reported in 2009 (2) GLT 65 Jatin Talukdar vs. State of Assam, more or less under similar circumstances, acquitted the Appellant interfering with the judgment of conviction. 19. In the instant case, although the prosecution evidence itself suggests that the accused/Appellant was suffering from some kind of mental disorder at the time of commission of the offence, but there is nothing to show that the mental disorder was of the level that he was incapable of knowing the nature of the act so as to attract total immunity as envisaged under Section 84 IPC. However, taking into account the said mental disorder, the evidence in its entirety, the manner, method and circumstances in which the single injury was inflicted by the accused/Appellant on his mother, we are of the considered opinion that it is not a case of culpable homicide amounting to murder warranting conviction of the Appellant under Section 302 IPC. 20. The reaction of the accused/Appellant to the query made by his mother was sudden and he gave one single 'dao' blow on the neck of his mother, which eventually caused her death. Sudden reaction of the accused and the single blow dealt with by him, which was affirmed by the medical evidence of PW 6, coupled with the kind of mental disorder, the accused Appellant was suffering from, in our considered opinion is not enough to bring the culpability of the accused/Appellant within the purview of Section 300 IPC warranting punishment under Section 302 IPC. At best he could he held liable for an act done with the knowledge that it is likely to cause such bodily injury as is likely to cause death, which would attract the provision of Section 304 Pt. IPC. 21. The circumstances, which are peculiar to the fact of this case would show that there is reasonable doubt whether the accused intended to cause that particular injury, in which case, the offence is one punishable under Section 304 Pt. I IPC, since the accused much be attributed knowledge that he was likely to cause the death. 22. We accordingly set aside and quash the conviction of the Appellant under Section 302 IPC and the sentence of imprisonment for life and instead we convict him under Section 304 Pt. IPC. I IPC, since the accused much be attributed knowledge that he was likely to cause the death. 22. We accordingly set aside and quash the conviction of the Appellant under Section 302 IPC and the sentence of imprisonment for life and instead we convict him under Section 304 Pt. IPC. The accused/Appellant was in jail since his arrest and the records have revealed that he was not granted bail. By now he has completed about 8 years term in jail. Having regard to the fact that the sentence prescribed for conviction under Section 304 Pt. I IPC is either for life or imprisonment of either description for a term which may extend to ten years and having regard to the special feature of the case and the age of the Appellant at the time of committing the offence (about 35 years), we are of the considered opinion that ends of justice will be met if the accused Appellant is sentenced imprisonment for the period already undergone by him. 23. For all the aforesaid reasons, the appeal stands allowed to the extent indicated above. The accused/Appellant be set at liberty forthwith, if not wanted in any other case. 24. Mr. S.K. Medhi, learned Amicus Curie, shall be entitled to two days hearing fee @ 2500/- per day. 25. LCR be sent down to the Trial Court alongwith the copy of this judgment. Appeal allowed.