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2017 DIGILAW 1449 (GAU)

Gonga Prasad Limboo v. State of Assam

2017-11-16

AJIT BORTHAKUR, UJJAL BHUYAN

body2017
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Mr. B.K. Singh, learned amicus curiae for the appellant and Mr. K. Konwar, learned Addl. PP, Assam. 2. This appeal is directed against the judgment and order dated 14.2.2013 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 32/2011 (State of Assam v. Ganga Prasad Limboo) convicting the appellant under section 302, IPC and sentencing him to imprisonment for life along with fine with a default clause. 3. Prosecution case in brief is that on 28.5.2010 at about 5:30 p.m. appellant caused severe injury to ploughman, namely, Pitu Karuwa, by dealing blows on his person with a sharp dao without any reason, as a result of which Pitu Karuwa died instantaneously. 4. The first information was lodged on the next date, i.e. on 29.5.2010 by the elder brother of the appellant, namely, Mon Bahadur Limboo. The first information was treated as FIR and on the basis thereof Duliajan PS Case No. 98/2010 was registered under section 302, IPC. On completion of investigation, police submitted charge-sheet charging the appellant with committing murder of the deceased by assaulting him with sharp weapon. 5. Being a sessions triable case, it was committed to the Court of Sessions, Dibrugarh whereafter the trial commenced. Prosecution examined as many as 10 witnesses, including official witnesses, like the doctor and the investigating officer and exhibited a number of documents. On completion of the prosecution evidence, appellant was examined under section 313 of the Code of Criminal Procedure, 1973 (Cr.PC). Thereafter, one witness deposed on behalf of the appellant as defence witness (DW-1). 6. After hearing the matter, learned court below vide the judgment and order dated 14.2.2013 convicted and sentenced the appellant as above. 7. This appeal was admitted for hearing on 7.3.2013. 8. In the appeal, plea of insanity has been taken. 9. In the course of hearing, this court had passed the following order on 16.9.2017: “Earlier the appellant was examined by a Medical Board consisting of Head of Department, Psychiatry and Faculty Members in Psychiatry and the report of Board revealed that he has been suffering from mental illness. We, therefore, directed the appellant to be treated at Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur. After treatment in the Mental Hospital, the doctors of that Hospital referred the appellant to the Department of Neurology, Guwahati Medical College and Hospital for further treatment. We, therefore, directed the appellant to be treated at Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur. After treatment in the Mental Hospital, the doctors of that Hospital referred the appellant to the Department of Neurology, Guwahati Medical College and Hospital for further treatment. The appellant was then treated in the Guwahati Medical College and Hospital and the report of Senior Resident of Neurology Department mentioned that there has been mild improvement in his neurological condition. On this report, we directed that treatment be provided to him till he is fully recovered. It is now stated that appellant is lodged in Central Jail, Dibrugarh. To ascertain his present mental condition, we direct that he be examined in the Department of Neurology, Guwahati Medical College and Hospital and thereafter produce before this court along with the medical report. List the appeal for hearing on 26.10.2017, on which date, appellant shall be produced from the jail along with the report of Department of Neurology stating his mental condition. A copy of the order be supplied to the learned Additional Public Prosecutor, Assam for information and compliance.” 10. Thereafter, when the appeal was called upon for hearing on 26.10.2007, appellant was produced before the court by the jail authority of Guwahati Central Jail. 11. It was submitted by Ms. Jahan, learned Addl. PP that though the appellant was examined by the Department of Neurology, Gauhati Medical College and Hospital, for proper assessment of his mental condition, the examination would have to be conducted by the Department of Psychiatry, Gauhati Medical College and Hospital. 12. In view of such submission, this court directed production of the appellant before the Professor and Head of Psychiatry Department, Gauhati Medical College and Hospital for his examination by a team of experts of the said Department. Accordingly, appellant was directed to be produced before the said authority on or before 06.11.2017 and after medical examination of the appellant, the authority was directed to submit report on 16.11.2017. 13. Today, in the hearing, appellant has been produced before us by the jail authority of Gauhati Central Jail. Mr. K. Konwar, learned Addl. PP has also produced before us the medical report submitted by Dr. H.R. Phukan, Professor and Head of the Department of Psychiatry, Gauhati Medical College and Hospital, Guwahati dated 14.11.2017. The report reads as under “Mr. 13. Today, in the hearing, appellant has been produced before us by the jail authority of Gauhati Central Jail. Mr. K. Konwar, learned Addl. PP has also produced before us the medical report submitted by Dr. H.R. Phukan, Professor and Head of the Department of Psychiatry, Gauhati Medical College and Hospital, Guwahati dated 14.11.2017. The report reads as under “Mr. Ganga Prasad Limboo, 32 years, Unmarried, Male was brought to the Psychiatry Department, Gauhati Medical College and Hospital, on 8.11.2017 with history of pain abdomen for last 4-5 days according to patient with past history of neurological disorder (AIDP) which is subsided after taking treatment in Neurology Department, Gauhati Medical College and Hospital with no history of psychiatric illness in family and no substance history. At present his mental status examination reveals that patient is conscious, alert, but guarded with not maintaining eye contact, inadequate hygiene, inappropriate smiling with relevant speech with increased reaction time and decreased productivity, irritable objection mood with idea of helplessness, helplessness without dealing with and guilt feeling, poor intelligence, intact memory, Greater insight impression, Moderate depression with psychotic symptom.” 14. From a careful examination of the report as extracted above, it is discernible that appellant is suffering from moderate depression with psychotic symptom. 15. Submissions made by learned counsel for the parties have been considered. Also perused the record. 16. Section 84 of the Indian Penal Code (‘IPC’) deals with an act of a person of unsound mind. For ready reference. Section 84 is quoted hereunder: “84. 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.” 17. From a plain reading of the aforesaid provision, it is evident that an act will not be an offence if done by a person who at the time of committing the act, by reason of unsoundness of mind was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. 18. In Shrikant Anandrao Bhosale vs. State of Maharashtra, (2002) 7 SCC 748 , Supreme Court was considering the plea of insanity taken by the accused under section 84, IPC. 18. In Shrikant Anandrao Bhosale vs. State of Maharashtra, (2002) 7 SCC 748 , Supreme Court was considering the plea of insanity taken by the accused under section 84, IPC. Supreme Court 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 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. Referring to an earlier decision of the Supreme Court in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 , it was held that burden of proof on the accused to prove insanity is no higher than that rests upon a party to civil proceedings which, in other words, means preponderance of probabilities. The legal position was succinctly summarized as under: “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 prose 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 rebuttable 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 prooj upon him is no higher than that rests upon a party to civil proceedings. (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 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.” 19. Whether the accused was in such a state of mind as to be entitled to the benefit of section 84, IPC can only be established from the circumstances which preceded, attended and followed the crime. This is the basic principle governing section 84, IPC and has been followed in subsequent decisions by the Supreme Court as well as by this court. 20. Having noticed the above, let us briefly analyse the relevant evidence relating to the plea of insanity. 21. PW-1, Ritu Sonowal, was a garden employee who knew the deceased. When the occurrence had taken place, he was working in the garden. Hearing hue and cry, he went to the place of occurrence, where he saw accused chasing the deceased with a dao in his hand. Thereafter the accused dealt cut blows on the neck and hand of the deceased following which the deceased fell down in a drain. He noticed that the accused was standing there with a dao in his hand, not allowing any person to go near him. When approached, he came chasing with the dao. After the police arrived, accused was apprehended with the help of public though the accused tried to flee after throwing the dao. The said witness was cross-examined and further cross-examined wherein he stated that he did not know as to whether accused was suffering from any mental illness and that sometimes he used to talk with the accused. 22. PW-2, Druna Sonowal, a local cultivator, in his cross-examination stated that he knew the accused from his childhood and that the accused was suffering from mental illness though he could not definitely say since when the accused was suffering from mental illness. 23. Likewise, PW-3. Puma Bahadur Limboo, father of the accused in his cross-examination stated that the accused was his son and used to reside with him. 23. Likewise, PW-3. Puma Bahadur Limboo, father of the accused in his cross-examination stated that the accused was his son and used to reside with him. As he was suffering from mental illness, they had taken him to Assam Medical College and Hospital, Dibrugarh on several occasions. He also submitted medical documents relating to treatment of the accused before the court. He further stated that accused was suffering from mental illness since about 5/6 years back. At this stage, we may point out that cross-examination of PW-3 was recorded on 29.11.2012 and 5/6 years earlier would be around 2006-07; as noticed above, the occurrence had taken place on 28.5.2010. Explaining the nature of mental illness of the accused, PW-3 stated that when the mental ailment recurred, accused used to sit for a longtime; sometimes he used to run without any reason; and sometimes he used to rebuke people. During the days when he suffered from such condition, he did not take any meal. Because of such behaviour of the accused, PW-3 used to bring the police to their residence. Even the police could not control the accused who could only be controlled by the local villagers and admitted to hospital. PW-3 further stated that accused had no altercation with the deceased and at the time of the incident, accused was suffering from mental illness. Elaborating further, he stated that such mental condition used to remain for about 15/20 days. When the accused used to behave abnormally, he was administered medicine and then the abnormality of his behaviour lessened to a certain extent. 24. PW-5, Mon Bahadur Limboo, the elder brother of the accused and the informant, corroborated the evidence of PW-3 by stating in his cross-examination that accused was suffering from mental disease for which he had to be taken to Dibrugarh several times for treatment. At the time of the incident, the accused was suffering from mental disease. He also stated that police did not investigate the aspect regarding mental ailment of the accused. 25. We find from the recorded examination of the accused under section 313, Cr.PC that learned Court below did not put across to the accused any query as regards his mental ailment and whether at the time of commission of the offence he was suffering from such ailment. 26. On behalf of the accused. Dr. 25. We find from the recorded examination of the accused under section 313, Cr.PC that learned Court below did not put across to the accused any query as regards his mental ailment and whether at the time of commission of the offence he was suffering from such ailment. 26. On behalf of the accused. Dr. Hiranya Kumar Goswami, Professor and Head, Department of Psychiatry, Assam Medical College and Hospital, Dibrugarh, deposed as DW-1. He stated that while he was working as a consultant of VG Hospital, Dibrugarh, he had examined the appellant in the said hospital on 9.7.2006 where he was admitted as an indoor patient. After treatment he was discharged on 21.7.2006. He proved the discharge certificate of the appellant. DW-1 further stated that after such discharge from hospital, appellant used to visit him from time-to-time for treatment and advice. In his cross-examination, he stated that the patient, i.e. the appellant was diagnosed as having schizophrenia. He explained schizophrenia as under: “Schizophrenia is a major kind of mental illness. Schizophrenia is a kind of incurable mental illness. A man with schizophrenia in general, might have suspicion, he might have delusion and illusion. He may be destructive. He may be violent to others as well as self also he may not be performing his duty well and might have social and occupational impairments. A patient suffering from schizophrenia, usually suffers from loss of cognitive faculty. On proper treatment and medication, the patient may recover. Even during medication, illness may recur.” 27. Thus, from the conspectus of the evidence on record and from a careful appreciation thereof, we find that appellant had a history of psychiatric disorder for which he was under treatment of DW-1 during the month of July 2006 and as per evidence of DW-1 thereafter also he had continued the treatment with him. The offence was committed on 28.5.2010. It has come on record that appellant had no enimity or hardly any acquaintance with the deceased and without any rhyme or reason, he had inflicted the fatal blows on the person of the deceased resulting in his instantaneous death. We notice that the first information was lodged by the elder brother of the appellant (PW-5), who in his evidence has clearly stated that at the time of the incident appellant was suffering from mental illness which aspect of the matter was not investigated by the police. We notice that the first information was lodged by the elder brother of the appellant (PW-5), who in his evidence has clearly stated that at the time of the incident appellant was suffering from mental illness which aspect of the matter was not investigated by the police. This evidence of PW-5, finds corroboration in the evidence of PW-3 and PW-2 as discussed above. 28. In Butterworths Medical Dictionary, 2nd Edn. schizophrenia has been defined as a mental disorder characterized by a special type of disintegration of the personality; thought processes are directed by apparently random personal associations rather than logically to a goal; there is incongruity between the content of thought and the corresponding emotion; and an impaired relation to reality. Delusions, hallucinations and catatonia may be predominant features. 29. Reverting back to the decision in Shrikant Anandrao Bhosale (supra), we find that Supreme Court had analysed and discussed in detail the medical conditions of schizophrenia which is extracted as under: “10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develops into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but afterwards change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions, thus, may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions, thus, may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversations is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. 11. Further, according to Modi, the cause of schizophrenia is still not known but heredity plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of patient, he is source of danger to himself and to others.” 30. Upshot of the above discussion is that we are confronted with a situation where there is sufficient evidence on record which indicates that appellant was suffering from mental ailment prior to, during and subsequent to the crime. Therefore, we have no hesitation to hold that the act committed by the appellant resulting in the death of the deceased was an act of a person of unsound mind and consequently, appellant would be entitled to the benefit of section 84, IPC. 31. Resultantly, we set aside the impugned judgment and order dated 14.2.2013 and direct release of the appellant from jail. 32. However, considering the medical report submitted by the Professor and Head of the Department of Psychiatry, Gauhati Medical College and Hospital and our observation of the demeanour of the appellant who is present before us, we are of the view that appellant is in need of further treatment and, therefore, should be provided necessary treatment. In the course of the hearing, we had asked the jail personnel who have accompanied the appellant to the court as to whether any family members of the appellant had visited him during his stay in the jail. They have stated that they have not seen any relative visiting the appellant. We accordingly, direct the Member-Secretary, Assam State Legal Services Authority to get the appellant admitted in the Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur and provide necessary assistance in the treatment of the appellant. They have stated that they have not seen any relative visiting the appellant. We accordingly, direct the Member-Secretary, Assam State Legal Services Authority to get the appellant admitted in the Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur and provide necessary assistance in the treatment of the appellant. Member-Secretary shall monitor the progress of the appellant and after recovery of the appellant on certification by the doctors of the said institute, shall take effective steps for rehabilitation and re-integration of the appellant into the community. 33. Thus, with the above direction, appeal is allowed. 34. There shall, however, be no order as to cost. 35. Before parting with the record, we place on record our appreciation of the assistance rendered by Mr. B.K. Singh, learned amicus curiae and direct Assam State Legal Services Authority to pay his fees, which is quantified at Rs. 7,500.