Tuesday, 3 July 2018

Whether court can acquit accused even if he has failed to prove that he was insane at the time of incident?

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 . STATE OF MAHARASHTRA 
Dated:JULY 02, 2018.



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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