The law undoubtedly presumes that every person
committing an offence is sane and liable for his acts, though in
specified circumstances it may be rebuttable. The doctrine of
burden of proof in the context of the plea of insanity was
stated as follows in Dahyabhai Chhaganbhai Thakkar v.
State of Gujarat, (1964) 7 SCR 361 :
“(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 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
proof 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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.814 OF 2017
DEVIDAS LOKA RATHOD . V STATE OF MAHARASHTRA
Dated:JULY 02, 2018.
Citation: (2018) 7 SCC 718
Citation: (2018) 7 SCC 718
The appellant assails his conviction under Section 302
and 324 of the Indian Penal Code (IPC), rejecting his defence
that he was of unsound mind.
2. In the morning of 26.09.2006, the appellant suddenly
picked up a sickle from the shop floor of the iron smith and
attempted to assault Gulab Pawar (P.W.11), but which injured
Santosh Jadhav (P.W.5) on the jaw and cheek and gave a
further blow on his shoulder. The same day, he later
assaulted Ulhas Rathor (P.W.3) on his back and neck and
rained blows on the back and stomach of the deceased Harish
Chandra Chauhan, when the latter tried to intervene. The
appellant then tried to flee, throwing the sickle enroute, when
he was apprehended by the villagers and handed over to the
police.
3. The Additional Sessions Judge, Akola rejected the
defence plea for unsoundness of mind, citing insufficient
evidence relying on the evidence of Dr. Sagar Srikant
Chiddalwar (C.W.1) that the appellant was not mentally sick
and fit to face trial. The subsequent conduct of the appellant
while in custody, his demeanour during the trial, were further
relied upon to conclude that the appellant was conscious of
his wrongful acts which were deliberate in nature, evident
from the repeated assaults and running away from the place of
occurrence after throwing the sickle. The High Court declined
to interfere with the conviction.
4. Ms. Aparna Jha appearing on behalf of the appellant
urged that in absence of any mens rea, conviction under
Section 302 I.P.C. was unsustainable, relying upon
Dahyabhai Chhaganbhai Thakker vs. State of Gujarat,
21964 (7) SCR 361. It was next contended that the evidence of
Mankarna Chavan (D.W.1) and Gograbai Rathod (D.W.2), with
regard to the unsoundness of mind of the appellant has not
been properly appreciated and wrongly rejected as insufficient.
The appellant belonged to a very poor family and they could
not be expected to keep his medical records and prescriptions
meticulously. The defence witnesses had deposed that the
appellant was under the treatment of Dr. Kelkar at Akola.
There existed sufficient evidence for a plausible defence for
unsoundness of mind under Section 84 of the Indian Penal
Code read with Section 105 of the Evidence Act on a
preponderance of the probability. The prosecution failed to
lead any evidence in rebuttal, for which reliance was placed on
Elavarasan vs. State represented by Inspector of Police,
2011 (7) SCC 110. The conviction was, therefore, unjustified
and the appellant was entitled to acquittal.
5. Learned counsel for the State, Shri Katneshwarkar,
opposing the appeal, submitted that the appellant had failed
to prima facie establish a case for unsoundness of mind on
probability. The trial judge had taken adequate precautions in
calling for medical reports from time to time and satisfying
himself with regard to the ability of the appellant to defend
himself quite apart from also noticing his demeanour in court.
The conduct of the appellant in making repeated assaults,
running away from the place of occurrence, throwing the
sickle on the way, were all sufficient to establish the
commission of the offence knowingly by him, incompatible
with the defence of unsoundness of mind.
6. We have considered the respective submissions.
Normally, this Court is reluctant to interfere with concurrent
findings of facts by two courts, under Article 136 of the
Constitution, as also observed in Deepak Kumar vs. Ravi
Virmani and another, 2002 (2) SCC 737. But this does not
preclude it in appropriate cases to reappraise evidence in the
interest of justice, if it entertains any doubt about the nature
of evidence and its appreciation or nonappreciation. There
can be no hard and fast rule in this regard, and much will
4depend on the concept of justice in the facts of a case, coupled
with the nature of acceptable evidence on record.
7. The prosecution, including the injured witnesses,
undoubtedly denied that the appellant was of unsound mind.
But the evidence of police SubInspector Chandusingh
Mohansingh Chavan (P.W.14), coupled with the reference to
the medical reports of the appellant, persuaded us to examine
the original records of the trial court ourselves in order to
satisfy us that there had been proper and complete
appreciation of all evidence and that the findings were not
perverse or obviated by nonconsideration of relevant
materials, so that justice may ultimately prevail.
8. That the appellant was a very poor person stands
established by P.W. 14, and which consequently necessitated
legal assistance to him for his defence by the District Legal
Services Authority, Akola as also before the High Court and
also before this court by the legal aid cell.
59. P.W.14, in his examinationinchief, stated that the
appellant was caught immediately after he made the assault
on 26.09.2006 and brought to the police station. The FIR was
registered the same day. But the appellant was taken in
custody only on 28.09.2006 because he was not keeping well
and had been admitted in the hospital. The information of his
arrest was not given to his sister or mother, but only to his
friend Nagorao Baghe, who has not been examined. In view of
the previous history of insanity of the appellant as revealed, it
was the duty of an honest investigator to subject the accused
to a medical examination immediately and place the evidence
before the court and if this is not done, it creates a serious
infirmity in the prosecution case and the benefit of doubt has
to be given to the accused, as observed in Bapu vs. State of
Rajasthan, (2007) 8 SCC 66. The admitted facts in the
present case strongly persuades us to believe that the
prosecution has deliberately withheld relevant evidence with
regard to the nature of the appellant’s mental illness, his
mental condition at the time of assault, requiring
6hospitalization immediately after the assault and hindering his
arrest, the diagnosis and treatment, the evidence of the
treating doctor, all of which necessarily casts a doubt on the
credibility of the prosecution evidence raising more than
reasonable doubts about the mental condition of the
appellant. Unfortunately, both the trial court and the High
Court, have completely failed to consider and discuss this very
important lacuna in the prosecution case, decisively crucial for
determination or abjurement of the guilt of the appellant.
10. The law undoubtedly presumes that every person
committing an offence is sane and liable for his acts, though in
specified circumstances it may be rebuttable. The doctrine of
burden of proof in the context of the plea of insanity was
stated as follows in Dahyabhai Chhaganbhai Thakkar v.
State of Gujarat, (1964) 7 SCR 361 :
“(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 rebuttable presumption that the
accused was not insane, when he committed the
7crime, 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 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.”
11. Section 84 of the IPC carves out an exception, that an act
will not be an offence, if done by a person, who at the time of
doing the same, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or what he is doing
is either wrong or contrary to law. But this onus on the
accused, under Section 105 of the Evidence Act is not as
stringent as on the prosecution to be established beyond all
reasonable doubts. The accused has only to establish his
defence on a preponderance of probability, as observed in
Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC
8495, after which the onus shall shift on the prosecution to
establish the inapplicability of the exception. But, it is not
every and any plea of unsoundness of mind that will suffice.
The standard of test to be applied shall be of legal insanity and
not medical insanity, as observed in State of Rajasthan vs.
Shera Ram, (2012) 1 SCC 602, as follows :
“19. ……..Once, a person is found to be suffering
from mental disorder or mental deficiency, which
takes within its ambit hallucinations, dementia, loss
of memory and selfcontrol, at all relevant times by
way of appropriate documentary and oral evidence,
the person concerned would be entitled to seek
resort to the general exceptions from criminal
liability.”
12. The crucial point of time for considering the defence plea
of unsoundness of mind has to be with regard to the mental
state of the accused at the time the offence was committed
collated from evidence of conduct which preceded, attended
and followed the crime as observed in Ratan Lal vs. State of
Madhya Pradesh, (1970) 3 SCC 533, as follows:
“2. It is now wellsettled that the crucial point of
time at which unsoundness of mind should be
9established is the time when the crime is actually
committed and the burden of proving this ties on
the accused. In D.G. Thakker v. State of Gujarat it
was laid down that “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 proof upon him is
no higher than that which rests upon a party to civil
proceedings”.
13. If from the materials placed on record, a reasonable
doubt is created in the mind of the Court with regard to the
mental condition of the accused at the time of occurrence, he
shall be entitled to the benefit of the reasonable doubt and
consequent acquittal, as observed in Vijayee Singh vs. State
of U.P., (1990) 3 SCC 190.
14. We shall now consider the sufficiency of other medical
and defence evidence to examine if a reasonable doubt is
created with regard to the mental state of the appellant at the
time of commission of the assault on a preponderance of
probability, coupled with the complete lack of consideration of
the evidence of P.W.14. Merely because an injured witness,
10who may legitimately be classified as an interested witness for
obvious reasons, may have stated that the appellant was not
of unsound mind, cannot absolve the primary duty of the
prosecution to establish its case beyond all reasonable doubt
explaining why the plea for unsoundness of mind taken by the
accused was untenable.
15. The accused was taken into custody on 28.09.2006.
Chargesheet was submitted on 29.12.2006 and commitment
done on 16.02.2007. The Trial Court records reflect several
medical visits in prison, even weekly, 12 in number, between
the period from 09.01.2007 to 07.04.2007, administering of
antipsychotic drugs such as tablet Haloperidol and tablet
Olanzapine and tablet Diazepam to the appellant with the
impression recorded by the Doctor that the patient is
psychotic and needs continuation of treatment. The
significance of use of the words “continuation” cannot be lost
sight of, and has obviously been used with regard to a preexisting
ailment and which includes the period prior to and
from 26.09.2006 to 28.09.2006. On 03.05.2007, an
11application was moved on behalf of the appellant under
ChapterXXV of the Code of Criminal Procedure that he was
not fit to face trial. A fresh medical report was called for on
14.06.2007 which opined on 19.06.2007 that the appellant
was a chronic patient of psychotics who has been evaluated
time and again by the Mental Hospital, Nagpur, the present
doctor at Akola and also by the Psychiatrist. On 13.07.2007,
the Trial Court directed him to be sent to the Mental Hospital
and called for a fresh report. On 11.04.2008, fresh report was
called for and the appellant was prescribed Trinicalm Forte
tablet/Trinicalm Plus tablet amongst other medicines. The
treating Doctor, Dr. Pramod Thakare, opined in writing on
20.05.2009 as follows:
“1) Above named prisoner is suffering from mental
illness (psychosis) since unknown duration. He is being
treated and examined by several psychiatrists attached to
Govt. Medical College and Hospital, Akola since January
2008 during specialists visit to prison.
2) This prisoner showed suicidal tendency, aggressive
behavior, disturb sleep, poor communication and
occasional erratic behavior.
3) He was treated with a various antipsychotic drugs
since January 2008 till today.
12…..At present he is under control with antipsychotic
drugs and is still maintained on drugs. He may be
referred to Mental Hospital, Nagpur for further
investigations and expert opinion, for further
proceedings.”
16. The nature of illness of the appellant, and its correlation
to the nature of treatment required may appropriately be set
out as follows:
Haloperidol is used to treat certain mental/mood
disorders (e.g., schizophrenia, schizoaffective disorders). This
medicine helps you to think more clearly, feel less nervous,
and take part in everyday life. It can also help
prevent suicide in people who are likely to harm themselves.
It also reduces aggression and the desire to hurt others. It
can decrease negative thoughts and hallucinations.
Olanzapine is an antipsychotic medication that affects
chemicals in the brain. Olanzapine is used to treat the
symptoms of psychotic conditions such as
schizophrenia and bipolar disorder (manic depression)
Diazepam is used to treat anxiety, alcohol withdrawal,
and seizures. It is also used to relieve muscle spasms and to
provide sedation before medical procedures. This
medication works by calming the brain and nerves.
Diazepam belongs to a class of drugs known as
benzodiazepines.
Trinicalm Forte Tablet is a combination of three medicines:
Chlorpromazine, Trihexyphenidyl and Trifluoperazine.
Chlorpromazine is a typical antipsychotic. It works by
blocking the action of dopamine, a chemical messenger in
the brain that affects thoughts and mood. Trihexyphenidyl
13is an ant cholinergic which works on the nervous system
and corrects some of the side effects occurring during
antipsychotic treatment. Trifluoperazine is a typical
antipsychotic. It works by blocking the action of dopamine,
a chemical messenger in the brain that affects thoughts and
mood.
Trinicalm Plus 5 mg/2 mg Tablet is a combination of two
medicines: Trifluoperazine and Trihexyphenidyl.
Trifluoperazine is a typical antipsychotic. It works by
blocking the action of a chemical messenger (dopamine) in
the brain that affects thoughts and mood. However, it may
cause side effects such as involuntary movements (shaking
of hands, muscle spasms). Trihexyphenidyl is added to treat
and prevent these side effects.
17. C.W.1 was also examined by the defence as D.W.3 and
deposed that he had no materials with regard to the previous
history of the appellant, that none of his relatives were present
at the time of such examination, and he could not therefore
say anything regarding any preexisting mental disorder of the
appellant.
18. D.W.1, the sister of the appellant, and his mother D.W.2,
had stated that the appellant had to be tied up at times and
was unable to take care of himself, including clothing on his
person. The prosecution did not deny the fact of a treating
14Psychiatrist at Akola, by the name of Dr. Kelkar, mentioned by
the witness. The appellant and his family were poor people
and could hardly be expected to meticulously preserve medical
papers or lead expert evidence as observed in Ratan Lal
(supra). Merely because five years later in the witness box the
witness may have stated that there was no complaint from the
police with regard to the conduct of the appellant in custody,
the trial judge manifestly erred in his conclusion with regard
to the mental state of the appellant at the time of occurrence
by testing it on the touchstone of the present demenaour in
court and present conduct of the appellant, without any
reference to the medication that was being provided to the
appellant while in custody. Naturally, if the appellant was
being provided proper medical treatment during custody, his
condition would certainly improve over time.
19. The trial judge erred in proper consideration and
appreciation of evidence, virtually abjuring all such evidence
available raising doubts about the mental status of the
appellant at the time of commission of the offence, so as to
15leave his conviction as a foregone conclusion. The trial judge
unfortunately did not consider it necessary to put further
questions to P.W.14 with regard to the hospitalisation of the
appellant immediately after the occurrence and why the
prosecution had not placed the necessary evidence in this
regard before the court. The truth therefore remained elusive,
and justice thus became a casualty. The Trial Judge therefore
erred in his duty, as observed in State of Rajasthan vs. Ani
alias Hanif and others, (1997) 6 SCC 162 as follows:
“12. Reticence may be good in many
circumstances, but a Judge remaining mute during
trial is not an ideal situation. A taciturn Judge may
be the model caricatured in public mind. But there
is nothing wrong in his becoming active or dynamic
during trial so that criminal justice being the end
could be achieved. Criminal trial should not turn
out to be a bout or combat between two rival sides
with the Judge performing the role only of a
spectator or even an umpire to pronounce finally
who won the race. A Judge is expected to actively
participate in the trial, elicit necessary materials
from witnesses in the appropriate context which he
feels necessary for reaching the correct conclusion.
There is nothing which inhibits his power to put
questions to the witnesses, either during chief
examination or crossexamination or even during
reexamination to elicit truth. The corollary of it is
that if a Judge felt that a witness has committed an
16error or a slip it is the duty of the Judge to ascertain
whether it was so, for, to err is human and the
chances of erring may accelerate under stress of
nervousness during crossexamination. Criminal
justice is not to be founded on erroneous answers
spelled out by witnesses during evidencecollecting
process. It is a useful exercise for trial Judge to
remain active and alert so that errors can be
minimized.”
20. The Appellate Court also had a duty to consider the
nature of the evidence led by P.W.14 and the other medical
evidence available on record with regard to the appellant.
Unfortunately, it appears that the Appellate Court also did not
delve into the records in the manner required, as observed in
Rama and others vs. State of Rajasthan, (2002) 4 SCC 571
“(4) …… It is well settled that in a criminal appeal, a duty is
enjoined upon the appellate court to reappraise the evidence
itself and it cannot proceed to dispose of the appeal upon
appraisal of evidence by the trial court alone especially when
the appeal has been already admitted and placed for final
hearing. Upholding such a procedure would amount to
negation of valuable right of appeal of an accused, which
cannot be permitted under law.”
21. We are therefore of the considered opinion, that the
appellant has been able to create sufficient doubt in our mind
that he is entitled to the benefit of the exception under section
84 I.P.C. because of the preponderance of his medical
17condition at the time of occurrence, as revealed from the
materials and evidence on record. The prosecution cannot be
said to have established its case beyond all reasonable doubt.
The appellant is therefore entitled to the benefit of doubt and
consequent acquittal. The appeal is allowed. He is directed to
be released from custody unless wanted in any other case.
22. In view of our conclusions and findings based on the
medical evidence with regard to the appellant, it is considered
necessary to give further directions under Section 335 or 339
of the Criminal Procedure Code, as the case may be, so that
the appellant is not exposed to vagaries and receives proper
care and support befitting his right to life under Article 21 of
the Constitution of India. A copy of this order be sent to the
District Legal Services Authority, Akola for the needful.
…………...................J.
[A.M. KHANWILKAR]
…………...................J.
[NAVIN SINHA]
NEW DELHI
JULY 02, 2018.
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