V.M. Kanade, J.
1. Confirmation Case No.2 of 2013 has been placed before us for confirmation of the sentence of death awarded by the Additional Sessions Judge Pune in Sessions Case No. 275 of 2012 to the Accused Santosh Maruti Mane. Criminal Appeal No.148 of 2014 has been filed by the Appellant/Accused, challenging the Judgment and Order passed by the Additional Sessions Judge in Sessions Case No. 275 of 2012 whereby he was pleased to convict the accused for the offences punishable under sections 381, 302, 307, 324, 427 of the Indian Penal Code and for the offence punishable under section 3(2) of the Prevention of Damage to Public Property Act, 1984.
(II) Preliminary observation:
2. The Accused Santosh Maruti Mane was working as a driver in Maharashtra State Road Transport Corporation since 08/08/1999 and, at the relevant time, he was working with Swargate S.T. Depot, Pune.
3. The Accused on 25/01/2012 had requested Shashikant Damkale (P.W.23) who was Assistant Traffic Controller of Swargate Depot to change his duty from night out duty into single day duty. After the Assistant Traffic Controller declined his request, he quietly walked out of his office and went to S.T. Bus which was standing in the Depot, entered it and along with the key which was available with him started the said bus and hijacked it. He took two rounds in the Bus Depot during which he knocked down and crushed to death 2 to 3 people. When he was asked to stop the bus by the Officers of the S.T. Depot, he took out the S.T. Bus, drove the vehicle on circuitous route of about 14 to 16 kilometers, killed another six people in the process of driving the vehicle in the most reckless manner, grievously injured 36 persons; some of whom are permanently disabled, damaged the public property by driving his S.T. Vehicle over rickshaws, scooters, cars, electric polls until he was finally stopped and apprehended by a police-man who entered the S.T. Bus from one of the windows and successfully stopped the vehicle. The entire episode lasted for about 45 minutes.
4. During this joy-ride of the Accused, several attempts were made to stop him. Even one Police Officer fired six rounds initially on the tyre of the vehicle and, thereafter, tried to shoot him. He was, however, unsuccessful and the Accused even tried to crush him to death by taking his vehicle towards him. Fortunately on account of his training and skill, he managed to escape from the clutches of death. The accused, during this period, on more than one occasion drove his vehicle from the wrong direction. Whenever an attempt was made to stop him by putting barricades, he either drove through the barricades where possible or otherwise he stopped his vehicle, took the vehicle in the reverse direction and then drove on the wrong side and sometimes even lanes where was a no-entry sign. The members of the public who were outraged by the incident promptly started assaulting the accused after he was apprehended and he had to be saved by the police by escorting him out in a rickshaw to ensure that he was not killed by the public at large. The Accused, thereafter, was produced before the Magistrate and was remanded to police custody and then he was examined by a team of expert Doctors and he was also kept under observation till about 06/02/2012 where he was found to be normal and not of unsound mind not only on the day when the incident had happened but even thereafter.
5. The Charge Sheet was filed against the Accused for the offence punishable under sections 302, 307, 324, 381, 427 of the Indian Penal code and under section 3(2) of the Prevention of Damage to Public Property Act, 1984. The Accused pleaded not guilty to the said charge and he raised a plea of insanity under section 84 of the Indian Penal code and examined defence witness Dilip Burte (D.W.1) in support of the said plea.
6. Prosecution examined 39 witnesses in support of its case. The Accused did not dispute occurrence of the incident and practically there is no cross-examination regarding the incident, number of persons who had died and the rest who were grievously injured. He also admitted medical evidence under section 294 of the Criminal Procedure Code.
7. The Additional Sessions Judge held that the plea of insanity was not established and convicted him for the offence punishable under section 302 by holding that the case squarely fell under the provisions of section 300 'fourthly' and awarded him death penalty and sentenced him to undergo rigorous imprisonment for other offences with which he was charged. Against the said order of conviction Confirmation Case was filed in this Court. This case, by judgment and order dated 21/08/2013, however, came to the conclusion that no effective hearing was given to the Accused on the point of sentence and only to that extent the matter was remanded to the Trial court for passing appropriate sentence in accordance with law after due compliance of section 235(2) of the Criminal Procedure Code. After remand, Additional Sessions Judge was pleased to hear the Accused on the point of sentence.
8. At this stage, Accused made an application under section 329 and it was urged that the Accused on account of his unsoundness of his mind was incapable of making statement in compliance of section 235(2) of the Criminal Procedure Code and, therefore, prayed that he may be referred to any Psychiatrist or Clinical Psychologist for medical examination to ascertain whether he was suffering from unsoundness of mind and, therefore, was incapable of making statement in due compliance of section 235(2) of the Criminal Procedure Code.
9. The Additional Sessions Judge allowed the application and referred the Accused to the Superintendent of Government Mental Health Hospital or Psychiatrist of the said Hospital for medical examination to ascertain whether, at this stage, he was of unsound mind and incapable of supplying material for making effective compliance of section 235(2) of Cr.P.C. The Superintendent was directed to submit report. Accordingly, report was submitted by the Superintendent and in which the Psychiatrist had given an opinion that the accused was not having any psychotic features so as to make him incapable of making statement as required under section 235(2) of the Cr.P.C. He, however, recommended that the Accused may be given low dose of antidepressant and anxiolytic â sedative medicine for a period of two weeks. The Court, after going through the Report, passed an order on 28/10/2013 holding that the Accused was in a fit state of mind for the purpose of making statement. The Court also had made an inquiry in question and answer form on 15/10/2013 and the Court observed that the Accused had given rational answers to all 13 questions which were put to him. Again, after the Report was received from Psychiatrist of Yerawada Mental Health Hospital, inquiry was made on 25/10/2013 by asking 10 questions to the Accused. Thereafter, again on 28/10/2013 inquiry was made in question answer form. However, the Accused refused to say anything. His Advocate was thereafter heard on the point of sentence and finally on 11/12/2013 the impugned order was passed by the Additional Sessions Judge.
10. Since this is a Confirmation Case and since appeal also has been filed by the Accused, as per the settled position in law, this Court has to re-appreciate the entire evidence and record its reasons on the point of conviction and sentence.
(III) Points for determination:
11. The following points arise for our determination:-
(1) Whether the prosecution has proved that the death of nine persons had been caused due to homicidal injuries which were caused on account of the Accused driving the S.T. Bus No.MH-14-BT-1532 on 25/01/2012 between 8.05 a.m to 8.45 a.m. from Swargate S.T. Depopt and such of causing death is punishable under section 302 of the Indian Penal Code?
In the affirmative.
(2) Whether it is proved by the prosecution that the Accused committed theft of the S.T. Bus belonging to Swargate S.T. Depot and hijacked the said bus from the place where it was parked at Swargate S.T. Depot and used it for causing death of nine persons and causing injuries to 37 persons and committed theft of the S.T. Bus which is punishable under section 381 of the Indian Penal Code.
In the affirmative.
(3) Whether the prosecution has proved that the accused had caused injuries to the injured persons while recklessly driving the S.T. Bus and committed an offence punishable under section 307 of the Indian Penal Code.
In the affirmative.
(4) Whether the prosecution has proved that by driving the said S.T. Bus, the Accused had caused lot of damage to the public property to the tune of Rs 7,28,000/- and had, therefore, committed an offence of mischief punishable under section 427of the Indian Penal Code?
In the affirmative
(5) Whether the prosecution has proved that by driving the said vehicle and causing injuries to the number of persons and the Accused had committed an offence punishable under section 324 of the Indian Penal Code.
In the affirmative
(6) Whether the prosecution has proved that by committing the said act of driving the S.T. Bus recklessly and by causing damage to the public property, the Accused had committed an offence punishable under section 3(2) of the Prevention of Damage to Public Property Act, 1984?
In the affirmative
(7) Does the case fall within the purview of Section 84 of the Indian Penal Code?
In the negative
(8) What order? As per final order
(IV) Prosecution case in brief:
12. Prosecution has examined 39 witnesses in support of its case. The Accused examined as defence witness Dr. Dilip Burte (D.W.1) and Pharmacist Shivanand Shete (D.W.2) in support of his case that he is entitled to get acquittal since his case falls under section 84 of the Indian Penal Code.
13. Prosecution case in a nutshell is that on 25/01/2012, the Accused went and met P.W. 23 â Shashikant Damakale who was the Assistant Traffic Controller and requested him to change his night duty into single day duty. The Assistant Traffic Controller Shri Damakale expressed his inability to change his duty on account of non-availability of that duty on that day. The Accused, thereafter, quietly left the place, got into the S.T. Bus No. MH-14-BT-1532 which was allotted to P.W. 21 â Santosh Hendre and drove that vehicle. Prosecution case in brief is that despite protest being made by the Officers of the S.T. Department and though attempts were made to dissuade the Accused from driving the vehicle, the Accused took two rounds of the vehicle in the S.T. Stand and, thereafter, took it out on the main street and bogged down three people in the compound itself, killing them instantly and, thereafter, drove the vehicle in absolutely reckless manner, killing in all 9 people and injuring 37 people and travelled the distance of about 15 kilometers for about 45 minutes till he was finally stopped at one place on account of the efforts of Police Commando who entered the vehicle from window and thereafter attempted to stop the driver and in the ensuring scuffle S.T. Bus hit the divider of the road and finally stopped. The entire episode lasted for about 45 minutes and it left a trial of death and destruction right from the moment the Accused hijacked the S.T. Bus and drove it from Swargate Bus Depot to the place where it was finally got stopped.
14. The first victim was Shubhangi More who was instantly crushed to death after the Accused drove the vehicle over her at the Swargate S.T. Stand (Ingate) Parcel Office. This was witnessed by P.W.1 â Suryakant More. The other two persons who were killed inside the Swargate Bus Terminal were Changdeo Bhandwalkar and Ankush Tikone and one person was seriously injured viz. Godabai Lugade.
15. The Accused then took the bus out of the Swargate S.T. Stand (Outgate) and two people were injured; one was Deepak Modak and the other was Pradeep More.
16. He then took the bus near Shankersheth Road and following persons were injured viz (1) Tanaji Kale (Rickshaw Driver â P.W.8), (2) Babushaikh (Pedestrian), (3) Mahesh Gadhave (Rickshaw Driver â P.W.12), (4) Dattatraya Mohite (Rickshaw Driver â P.W.14), (5) Ganesh Galande (on motor bike), (6) Ganesh Bhise (Rickshaw Driver), (7) Premnath Gawali (Indica Car), (8) Ibrahim Shaikh (Rickshaw Driver), (9) Ashok Sarode (Xylo Car). Thus nine persons were injured at Shankarsheth Road and several bikes, auto rickshaws and two private cars were damaged.
17. The Accused then took the S.T. Bus towards Janaki Hall where Suresh Pawar, who was on motorcycle, R.K. Swami who was in Auto Rikshaw and Santosh Baride, who was in Tata Car were injured.
18. The S.T. Bus was then taken to PMT Workshop, Shankarsheth Road, where Dayaram More who was on Pulsar bike and Rohit Barse who was on Activa Scooter were injured.
19. The S.T. Bus, thereafter, went to Vega Centre where Shweta Oswal was killed and Rohini Jadhav (P.W.5), who was on Activa Scooter, Akansha Jain who was on Scooty and Abdul Shaikh (Rickshaw Driver) were injured.
20. The S.T. Bus when it reached Golibar Maidan two persons were injured viz Parmeshwar Tolnure who was on motorcycle and Sarjerao Mustad (P.W.22). At Jagtap Nursery Praful Nair who was motorcyclist was injured. Then at Napiar Road, Ramlalit Shukla was killed and Sameer Fernandes who was in Scorpio and Rahul Dube who was motorcyclist were injured. Then at Solapur Bazar Chowk, Aditi Kamble (P.W.6) was injured and Puja Patil was knocked down.
21. The S.T. Bus then went near Dr. Ambedkar School where the Accused rammed the vehicle in the Alto Car and Ishad Shaikh was injured. Then at S.M. Joshi School, Baburao Patil (P.W.9), father of deceased Pooja Patil, was injured. Then at Poona College Rajesh Chavan was on Activa Scooter was injured. Thereafter, at Khanya Maruti Chowk one Umesh Unde and Dattatraya Mahangare (P.W.13) were injured. Thereafter, at Bishop High School, Amogh Kulkarni who was in Polo Car was injured. Thereafter at Talera Bungalow one Jaitun Shaikh, who was on motorcycle and Affiya Sayyed were injured.
22. The Accused then took the vehicle to Indira Ghandi Chowk, East Stree and there Maruti Kanse, Sunil Sampat Pawar (PMT Driver) and Dilip Kumarkar were injured and one Maruti Car, PMT Bus and Travel bus were damaged. Thereafter, at Pulgate, the Accused knocked down Pankaj Khandelwal who died instantly and one Mohd. Sophie was injured when he was in his Hudai Car. The S.T bus which was driven by the Accused then knocked down Akshay Pise and he was dragged alongwith the vehicle for about 100 meters and died instantly and Wasim Bahadur Shaikh who was on motorcycle, Nishant Pawaskar (P.W.11) and Subhash Kamble were injured.
23. Finally, the S.T. Bus recklessly driven by the Accused was stopped at Samadhan Bhel Sarasbaug, but not before killing Milind Gaikwad and injuring Varsha Dhamale (P.W.7), Abhijeet Dhotre and Devendra Patil (Rickshaw Driver).
24. The prosecution, in all, has examined 39 witnesses. Out of these 39 witnesses, P.W. 5 to 14, 16, 18 and 22 are injured witnesses, P.W.1 â eye witness is relative of the deceased Shubhangi More and P.W. 17, 19, 21, 23 and 24 are independent eye witnesses. The prosecution has also examined the witness to show conduct of the Accused prior to the incident viz P.W.2 â Vijayanand Gulve, P.W. 4 â Balasaheb Sarode and P.W. 17 â Ajit Limaye, the Traffic Controller who recorded the FIR. The prosecution also examined number of witnesses to show the conduct of the Accused on the day of the incident viz. P.W. 18 â Amar Chavan, who was also an eye witness, P.W. 19 â Shivaji Tapare, Police Head Constavble who was also an eye witness, P.W. 20 â Bapu Lonkar, Police Commando who entered the vehicle through window, P.W. 23 â Shashikant Dhamkale, Assistant Traffic Controller. The prosecution has also examined P.W. 32 â Chetan More, Nodal Officer, Airtel to prove that on the date of the incident, the Accused had made a call at Barshi and spoke for 144 seconds.
25. The prosecution then has examined doctors in order to prove the state of mind of the Accused after the incident viz. P.W. 27 â Dr. Rahul Telang (E.N.T), P.W 28 â Dr. Kirankumar Jadhav, General Surgeon, P.W. 29 â Dr Vishal Patil (Orthopedic) and P.W. 31 â Dr. Bhalchandra Donglikar, Superintendent of Mental Health Hospital Yerawada.
26. The prosecution has also produced documentary evidence in the form of panchanama, medical reports etc. Most of the documents have been admitted by the accused under section 294 of the Criminal Procedure Code. The Accused has not disputed the entire incident.
27. The prosecution has proved that that the death of nine persons viz (1) Puja Bhaurao Patil, age 19, (2) Ram Lalit Shukla, age 25, (3) Shubhangi Suryakant More, age 35, (4) Pinkesh Lalchand Khandelwal, age 32, (5) Ankush Baban Tikone, age 46, (6) Akshay Pramod Pise, age 20, (7) Milind Purushottam Gaikwad, age 47, (8) Shweta Dhaval Oswal, age 28, and (9) Changdeo Pandharinath Bhandvalkar, age 55, was homicidal on account of the fact that they were hit by the S.T. Bus driven by the Accused and were crushed to death. The Accused has admitted Inquest Panchanama at Exhibits-17 to 25 and Autopsy Reports at Exhibits-41 to 49 of the said persons.
(V) Whether the case falls under section 300 'fourthly of IPC:
28. Once it is established that death of these 9 persons was homicidal, the next question which has to be seen is :
whether the accused committed murder of these persons within the meaning of section 300 of the Indian Penal Code.
29. The Accused has been charged for the offence punishable under section 300 fourthly which reads as under:-
â300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or -
Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.â
30. In order to bring the act within the purview of 'fourthly' of section 300, it has to be shown (i) the act was one of extraordinary recklessness, and (ii) it was wholly inexcusable, added to which the clause requires proof of (iii) the act being imminently dangerous, (iv) the danger to human life, being so imminent, (v) and its imminence is such that will either in all probability : (a) cause death, or (b) such bodily injury as is likely to cause death. The recklessness and inexcusability of an act must be judged by the nature and occasion of the act. It is quite well settled that intention to kill is not required in every case. If a person has knowledge that inevitable consequence of his act would be death, it will be sufficient for awarding conviction under section 302 of the Indian Penal Code. The probability which is found in the fourth clause of section 300 has to be understood from the point of view of a normal human knowledge and experience. Every normal human being learns as a result of experience and instructions and as a result of our learning we become aware of the risks and dangers which are involved in commission or omission of an act. From our childhood, we learn what are the probable consequences of touching a red hot iron bar or similar substance. As we grow older, we learn that touching of live electric wire would cause death. We, therefore, perceive the knowledge of possible risk and consequence of imminently dangerous act and, therefore, we can project ourselves into future on seeing before hand the probable consequences of our acts. Our acts, experience, learning and our memories prepare us to work forwards. Illustration (d) to section 300 is a classic example of a case falling under 'fourthly' of section 300. It reads thus:-
â(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.â
The section, according to the illustration, demonstrates the culpability of the offence. The person who commits an act which is so imminently dangerous may not intend to kill a particular person or persons. In that sense, intention to kill a particular person may not be there, yet he has knowledge that death is likely to be caused as nature of the said act. Even to that extent, it is not necessary that he should have motive for committing the said imminently dangerous act.
31. Eminent Authors J.C. Smith and Brian Hogan in their Book âCriminal Lawâ observed thus:-
âThe criminal law is no more an end in itself than the law of procedure and evidence through which it is enforced. Our criminal law has grown up over many centuries and the purposes of those who have framed it, and of those who have enforced it, have undoubtedly been many and various. Consequently, it is not easy to state confidently what are the aims of the criminal law at the present day. The authors of a completely new code of criminal law are, however, in a position to state their objectives at the outset. âThe general purposes of the provisions governing the definition of offencesâ in the American Law Institute's Model Penal Code might be taken as a statement of the proper objectives of the substantive law of crime in a modern legal system. The purposes are:
â(a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests;
(b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes;
(c) to safeguard conduct that is without fault from condemnation as criminal;
(d) to give fair warning of the nature of the conduct declared to be an offense;
(e) to differentiate on reasonable grounds between serious and minor offenses.â â
To a very large extent, principles of American Law Institute Model Penal Code influenced the English Penal Statute from which we have borrowed Anglo-Saxon jurisprudence. Dangerous driving causing three deaths may be punished more severely than the same dangerous driving causing only one but, in the present case, the Accused is not accused of merely dangerous driving but of deliberately stealing the S.T. Bus and without rhyme and reason indulging in wanton acts of killing 9 persons and injuring 37 in a state of mind which disclosed that he was fully conscious of the acts which he was doing and, as such, his forbidden conduct is inexcusable and the prosecution has proved beyond the reasonable doubt that he was absolutely sane before, during and after he had driven the vehicle.
32. Keeping the aforesaid principles in mind, it has to be seen whether the prosecution has established its case that action of the Accused squarely falls within the purview of 'fourthly' of section 300.
33. The Madras High Court in re: Arumugham, (1990 CRI.L.J. 1430) has held that an act of the accused holding the deceased who was 7 years child and dashing him against the ground in quick succession would fall within section 300 'fourthly'. In para 14 of the said Judgment, the Apex Court has observed as under:-
â14. From the act of the accused in catching hold of the legs of the deceased an dashing him against the ground thrice as adverted to earlier, we can very well infer that though he might not be having the requisite intention of causing the death of the deceased yet it cannot be stated that his act was not one, not done without any knowledge of the consequences of his actions in the sense of himself having the knowledge of doing away with the deceased. The act of the accused in such circumstances was imminently dangerous and the act had been performed by the accused with full knowledge of the consequences of his action without any excuse for the same. The evidence of the doctor P.W.10 also points out that external injury No.3 corresponding to internal injury Nos. 1 and 2 is necessarily fatal. In such circumstances, we are of the view that the act of the accused will squarely fall within clause (iv) of Section 300 I.P.C.
Similarly, Punjab and Haryana High Court in Sukhchain Singh vs. State of Punjab (2005 CRI.L.J. 5124) has held that the accused firing shots from 12 bore guns was an act which was imminently dangerous and he was liable to be convicted under clause 'fourthly' of section 300 IPC. It para 14 and 15 of its judgment, it has observed as under:-
â14. A perusal of Clause Fourthly shows that if the act done by the offender is eminently dangerous and that in all probabilities that will cause death or bodily injury as is likely to cause death, then the case will fall under Clause Fourthly of Section 300.â
â15. In State of Madhya Pradesh v. Ram Prasad, AIR 1968 SC 881 : (1968 Cri LJ 1025), it has been held as under by the Hon'ble Apex Court :-
â.... Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be sated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.â
Similar view has been taken by the Hon'ble Superme Court in Abdulise Suleman v. State of Gujarat, 1994 SCC (Cri) 668 : (1995 Cri LJ 464).â
In Anda and others vs. The State of Rajasthan (AIR 1966 SC 148), the Apex Court had an occasion to consider though not directly the purview and ambit of section 300 'fourthly' and it has observed in para 8 as under:-
â(8) The clause 4thly comprehends generally the commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that death might be the probable result and without any excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. This clause, speaking generally, covers cases in which there is no intention to cause death of any one in particular. Illustration (d) appended to this clause reads:
â(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.â
34. In order to determine whether the Accused has committed offence of murder under section 302, it will have to be seen whether the Accused has committed the act which was imminently dangerous and it would in all probabilities cause death or such bodily injury as is likely to cause death and that there is no excuse for incurring the risk of causing death or such injury. If the entire episode is taken into consideration dispassionately, the only conclusion which can be drawn from the facts and circumstances which have been established beyond the reasonable doubt by the prosecution is that the Accused, in a fit of rage, hijacked the S.T. Bus on irresistible impulse and drove that vehicle of death in absolutely reckless manner through the crowded streets of Pune, killing and injuring innocent people and damaging scooters, bikes, rickshaws, mini buses and damaging the public property. From the aforesaid act, the only inference that can be drawn is that the Accused in his outburst of anger intentionally drove his vehicle with an attention to kill or to make an attempt to kill and injure the persons and to damage the property till he was finally stopped at the end of sordid drama which lasted for 45 minutes, covering a distance of 15 kilometers. The only conclusion which can be arrived at from the conduct of the Accused in this episode is that his act was intentional and he had full knowledge that his act was so imminently-dangerous that it would definitely cause death of several persons. It is not necessary to recount the evidence of all the eye witnesses of the said incident since there is absolutely no challenge to the evidence of these witnesses and even, on many occasions, cross-examinations also have been declined and on few occasions to some of the witnesses only suggestions are made which do not, in any case, shatter their testimony. The ingredients of the offence punishable under section 300 sub-clause (4) are squarely attracted in the present case. The prosecution, therefore, in our view, clearly established beyond the reasonable doubt that the Accused committed an offence punishable under section 302 of the Indian Penal Code.
(VI) Whether the prosecution has established that the Accused had hijacked the S.T. Bus?
35. The second question which is required to be considered is : whether the prosecution has established that the Accused had hijacked or stolen the S.T. Bus from the premises of the Swargate Bus Depot. The prosecution, in our view, has established this fact beyond the reasonable doubt by examining P.W. 23 â Shashikant Damakale and P.W. 21 â Santosh Hendre. It is not in dispute that the S.T. Bus belonged to S.T. Depot, Satara and P.W. 21 â Santosh Hendre was supposed to ply the said vehicle. When he had gone to wash room, he heard some commotion and when he came out, he found that the Accused had taken the said S.T. Bus MH-14-BT-1532 and drove it recklessly in the City of Pune till it was seized from the Accused. The fact of seizure has been recorded in the panchanama at Exhibit-179A which was drawn by the Investigating Officer P.W. 39 â A.C.P. Rajendrasiha Vikramsiha Mohite in the presence of panchas. The ingredients of the offence punishable under section 381 of the Indian Penal Code, therefore, have been conclusively proved by the prosecution beyond the reasonable doubt.
(VII) Whether the Accused has committed an offence punishable under sections 307 and 324 of IPC?
36. The next question is whether the Accused has committed an offence punishable under sections 307 and 324 of the Indian Penal Code. The evidence of all the injured witnesses mentioned hereinabove as also the evidence of Police Martial clearly establishes that the Accused had attempted to commit murder of the injured witnesses and, therefore, has committed an act punishable under sections 307 and 324 of the Indian Penal Code. The Accused has admitted medical reports which disclose the injuries caused to the injured which are at Exhibits-50 to 52, 54, 56 to 58 and 61 to 63. The intention and knowledge on the part of the Accused to cause these injuries is evident from the statements of eye witnesses and the injured persons themselves. The Accused drove the S.T. Bus in such a manner that he knocked down whatever came in its way and wherever there were obstacles which could not be crossed, he stopped the vehicle at that time only, took it in reverse direction and found the way to drive the vehicle even though the vehicle was on the wrong side of the road or had entered into no entry lane which conduct disclosed his absolute determination and intention to kill or attempt to kill. We, have, therefore, no hesitation in holding that the prosecution has proved beyond reasonable doubt that the Accused had made an attempt to commit murder by causing injuries to injured persons. These injured persons are survived because they were promptly taken to the hospital and given immediate treatment. Most of the injured have sustained grievous injuries and some have permanently mained or have suffered from permanent disability. The Accused in the process of driving the said vehicle also voluntarily caused injuries to several other persons and, therefore, committed an offence punishable under section 324 of the Indian Penal Code. The accused has not disputed these facts.
(VIII) Whether the Accused has committed an offence punishable under section 427 IPC?
37. The next question is : whether the Accused has committed an offence punishable under section 427 of the Indian Penal Code. In our view, the prosecution has established this charge beyond the reasonable doubt. The Accused has admitted Exhibits-26 to 40 which are the Exhibits brought on record for proving crime seen panchanama and what damage caused to the said vehicles. It is not disputed that the damage which was caused as wrongful loss by the Accused by colliding his vehicle with the bikes, scooters, auto rickshaws, four wheelers was to the tune of Rs 7,28,000/-. The evidence of P.W. 5 to 10, 11 to 14 and 16 and 22 clearly establishes this fact.
(IX) Whether the Accused has committed an offence punishable under section 3(2) of the Prevention of Damage to the Public Property Act, 1984?
38. The next question which falls for consideration is : whether the Accused has committed an offence punishable under section 3(2) of the Prevention of Damage to the Public Property Act, 1984. Under the said Act, any person committing mischief of doing an act which results in causing damages to the public property, is liable to be punished under the provisions of the said Act. There is ample evidence on record which shows that the public property viz barricades, PMT Buses, Electric Poles, road dividers and the Bus which was driven by the Accused was public property which was damaged by reckless driving of the Accused. The Accused even damaged the barricades which were placed to stop the vehicle. We have no hesitation, therefore, in holding that the prosecution has established beyond the reasonable doubt that the Accused had committed an offence punishable under section 3(2) of the said Act.
39. We, therefore, confirm the conviction and sentence of the Accused imposed by the Trial Court under sections 307, 324, 381, 427 of the Indian Penal Code and under section 3(2) of the said Act. The Point Nos. 1 to 6 mentioned in para 11 above are accordingly answered in the affirmative.
(X) Whether it is established by the Accused that his case falls within the purview of section 84 of the IPC?
40. The next question which falls for consideration is: whether the case of the Accused falls within four corners of section 84 of the Indian Penal Code and, as such, the accused is entitled to be acquitted of the charges which are levelled against him?
41. Before we take into consideration the evidence which is brought on record by the prosecution and by the Accused and before considering the rival submissions on this point, it will be necessary to briefly take into consideration the settled position of law on this point. Section 84 of the Indian Penal Code reads as under:-
â84. 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.â
42. The aforesaid section falls under one of the general exceptions which have been carved out by the Indian Penal Code in order to absolve the Accused of the liability and punishment which would otherwise be awarded to him unless it is proved that his case falls under one of the exceptions. Though, initial burden of proving commission of the offence by the Accused is on the prosecution, the burden to bring the case under one of the exceptions is on the Accused. The said burden, however, is on the basis of preponderance of probabilities and not on 'beyond reasonable doubt' The Apex Court in Siddhapal Kamala Yadav vs. State of Maharashtra (S.L.P. (Crl) No.509 of 2008) has very succinctly in three paragraphs of the said judgment has discussed the law on the point viz. Paragraphs 10, 11 and 12 which read as under:-
â10. Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).
11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in `History of the Criminal Law of England, Vo. II, page 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. This Court in Sheralli Walli Mohammed v. State of Maharashtra [(1973) 4 SCC 79 : 1973 SCC (Cri) 276 : 1972 Cr.LJ 1523] held that: (SCC p.82, para 14)
'14.......The mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have necessary mens rea for the offence.'
â12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughten rules of 19th Century England. The provisions of Section 84 are in substance the same as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case [(1843) 4 St. Tr. (NS) 847]. Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act ; but merely a cessation of the violent symptoms of the disorder is not sufficient.â
The Apex Court in Sheralli Wali Mohammed vs. State of Maharashtra (1973) 4 SCC 79) which has been referred to in Siddhapal (supra), in para 12 has observed as under:-
â12. To establish that the acts done are not offences under Section 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offence, he was labouring under any such incapacity? On this question, the state of his mind before or after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thahkar v. The State of Gujarat (1), Subba Rao, J., as he then was, speaking for the Court said :
â(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.â
Division Bench of this Court in State of Maharashtra vs. Sindhi Alias Raman S/o. Dalwai (1987) 89 BOMLR 423)has observed in paragraphs 2, 8 and 9 as under:-
â1. [After discussing evidence and minor points His Lordship proceeds] There is a clear distinction between legal insanity and medical insanity. The medical insanity may be of various types, kinds and degrees. To what extent the medical insanity affects the cognitive faculties of a person will naturally depend upon the nature of that insanity. A person may be suffering from some form of insanity recognised by the doctors as such, but that form of insanity may not necessarily be the unsoundness of mind contemplated by Section 84 of the I.P.C. If despite the insanity, which the doctor may find in a particular person, that person is able to recognise the nature and the quality of the act for which he is tried or if he is capable of knowing that what he was doing was either wrong or was contrary to law, then the benefit of Section 84 of the I.P.C. naturally would not be available to him. It is not every form of insanity, loosely so called, that is recognised by law as sufficient excuse as to come within the protection of Section 84 of the I.P.C. If, despite the state of mind of the accused which Dr. Patkar found on the day on which he examined him and assuming that this state of mind had set in by the day on which the incident took place, the accused was capable of knowing the nature of his act and after the knowing the nature of his act he was also capable of knowing that what he was doing was either wrong or contrary to law, then naturally the accused would not get the benefit of Section 84 of the I.P.C.â
â8. This analysis of Section 84 is clearly not acceptable to me. It is not correct to say, as Mr. Chitnis has suggested, that Section 84 contemplates three kinds of situations. In fact, properly analysed, it can be easily seen that Section 84 visualises only two situations. Those situations are: (1) the incapacity of the accused of knowing the nature of the act and (2) the incapacity of the accused to know that what he is doing is either wrong or contrary to law. The latter situation may consist of two parts, but that does not make the situation itself two in number. In my opinion, properly analysed, the said provision must mean that nothing is an offence which is done by a person who, at the time of doing it, by reason of un-soundness of mind, is incapable of knowing the nature of the act. If, however, he knows the nature of the act, then he should be incapable of knowing that he is doing what is either wrong or contrary to law. If, being capable of knowing the nature of the act, he is capable of knowing that what he is doing is either wrong or contrary to law, then he would not be able to get the protection of the provisions of Section 84. It is his incapacity, after knowing the nature of the act, to know that what he is doing is either wrong or contrary to law, that would place him under the umbrella of protection of Section 84. If he knew that what he was doing was either wrong or contrary to law, then he would not be getting the protection of Section 84. For example, if he knew that what he was doing was contrary to law but he did not know that it was wrong, that would not be a case contemplated by Section 84. The use of the words "either" and "or" in "that he is doing what is either wrong or contrary to law" is significant. What is contemplated is the incapacity of the person to know either. If he knew either, then, naturally, he would not get the protection of Section 84. Though normally one would not venture into redrafting a statute or a part of the statute enacted by the legislature, in the instant case, for the purpose of easier understanding, the said section can be expressed in different words, as suggested by Mr. Kotwal, as follows: 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 knowing the nature of the act, he is incapable of knowing that what he is doing is either wrong or contrary to law.â
â9. Expressing the same in slightly modified form in positive words, it can be said that a thing done is an offence if done by a person who, at the time of doing it, was capable of knowing the nature of the act or, after knowing the nature of the act, was capable of knowing that what he was doing was either wrong or contrary to law.â
43. Keeping in view the aforesaid settled position in law, we shall know examine the evidence which is brought on record by the prosecution and by the defence in support of their case on this point
44. If one analyses the aforesaid judgments the following principles emerge:-
(1) Burden of bringing the case under general exception is on the accused.
(2) Test of preponderance of probability has to be applied.
(3) Burden on the Accused is no higher than that resting upon the Plaintiff or Defendant in civil proceedings.
(4) Initial burden on the prosecution to establish that the act/omission is committed by the Accused.
(5) Mere prior incidence of treatment taken is not sufficient. It has to be established that at the time of commission of an offence, the Accused was of unsound mind and was incapable of understanding consequences of his action.
(6) The Court is concerned with legal insanity and not with medical insanity.
(7) Burden rests on the Accused to prove his insanity by virtue of section 105 of the Evidence Act.
(8) In order to get benefit of section 84, it has to be shown that the Accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then only this section can be applied.
(9) Mere fact that motive has not been proved would not indicate that he was insane or that he did not have necessary mens rea for the offence. Mere abnormility of mind or partial delusion, irresistible impulse or compulsive behaviour of psychopath affords no protection under section 84.
(X-A) Submissions of the Counsel for defence on the plea of insanity:
45. The learned Counsel appearing on behalf of the Accused in the Trial Court as well as in this Court has not disputed the incident as it took place except for a few minor details regarding how the Accused was apprehended and pertaining to non-examination of certain witnesses. Otherwise, by and large, the gruesome episode which took place is not doubted. The only emphasis, therefore, was on the fact that the Accused was insane and as a result of insanity was not in a position to understand the nature and consequences of his act For establishing this, the defence mainly has submitted that if the entire act of the Accused is taken into consideration then it is clear that only an insane person would commit such act and, secondly, reliance was placed on the medical certificates which were issued by the doctors immediately after the Accused was produced before the Magistrate viz Exhibit-140 â an opinion given by Dr. Kothastane dated 25/01/2012, Exhibit-141 â medical certificate issued by Dr. S.J. Mahamuni and Exhibit-142 - medical certificate issued by Dr. Bhilume. It was submitted that Exhibits-140, 141 and 142 which are undisputed documents issued by expert doctors clearly point out that the Accused was of unsound mind when the incident happened. It was submitted that there was positive evidence regarding unsoundness of mind of the Accused at the time of the incident. It was then submitted that a panel of doctors who examined the accused from 28/01/2012 to 06/02/2012 had come to the finding that the possibility of psychiatric illness in his life time cannot be ruled out. It was submitted that if the Accused was completely sane then the panel of doctors would not have mentioned that there was a possibility of psychiatric illness. It was contended, therefore, that though the panel of doctors had not confirmed that the Accused was completely sane, it had confirmed about the possibility of psychiatric illness. It was submitted that if two views are possible then the view favouring the Accused should be taken. It was, therefore, submitted that the Accused had discharged his burden and it was conclusively established by the expert evidence of doctors that the Accused was of unsound mind at the time of incident. It was submitted that the evidence of P.W. 2 â Vijay Gulave who was the conductor accompanying the Accused on previous day was not relevant since it showed the state of mind of the Accused on previous day. It was then submitted that the prosecution had not recorded the statements of co-drivers in the rest room who were present alongwith the Accused on the previous night in the rest room prior to the incident. It was submitted that there was no motive for the Accused to commit the said crime. It was contended that if the Accused had any grievance against the ST Officials, he would have assaulted the officials and would not have killed common public wit whom he had no enmity. It was submitted that the prosecution had deliberately created an evidence to show that the Accused had a motive in committing the said offence. Lastly, it was submitted that the investigation was not done fairly and only interested witnesses were examined. Firstly, it was submitted that the P.W. 20 â Lonkar who was examined by the prosecution to show that he had apprehended the Accused, was a got up witness. It was submitted that if really Lonkar had apprehended the Accused, his name would have come in the remand yadi and his name would have appeared in panchanama of the place of offence. It was submitted that absence of his name in the above documents clearly shows that he was a got up witness. Secondly, it was submitted that it was not possible for any one to enter the ST Bus through the window since the space was too small. It was then submitted that an independent witness Shariff Kutti who had entered the bus and stopped the bus and he was felicitated for this and his interview was published and before electronic media he had stated that the driver was insane. It was submitted that P.W. 20 â Lonkar had admitted in cross-examination that his statement was recorded by police and he put his signature on the same but the statement which was produced in the Court does not bear his signature. It was submitted, therefore, that the material documents in support of the Accused were suppressed. It was submitted that the Trial Court had erred in not accepting the evidence of Dr. Burte (D.W.1) - defence witness. It was submitted that the evidence of Dr. Burte would clearly establish that the Accused was being treated for psychiatric illness and that he was given electro convulsive therapy by Dr. Burte. It was submitted that D.W 2 - Shivanand Shete also had clearly admitted about purchase of medicine by the Accused. It was submitted that this established that Dr. Burte had examined the Accused on the dates which are mentioned in the case paper and he had prescribed medicine for the psychiatric illness. It was submitted that even after firing of bullets by the police martial, driver of the Bus did not stop also showed that it was an act of an insane man.
(X-B) Submissions of the Counsel for prosecution on the plea of insanity:
46. On the other hand, the learned Public Prosecutor Mr. Shinde submitted that the prosecution has clearly discharged its initial burden of establishing that the Accused had committed an act of hijacking the bus from the ST Depot, though he was not officially assigned any duty and, thereafter, he drove the ST Bus in such a way as to kill 9 persons and injure 37 persons. He submitted that the prosecution has established by examining doctors who examined the patient that the Accused was sane. He submitted that the prosecution also has proved by examining witnesses that conduct of the Accused on the previous day was that of a perfectly sane person. Similarly, by examining doctors who examined the patient immediately after his arrest also established that he was not insane. He submitted that medical record which was produced regarding the Accused having been kept under observation from 28/01/2012 to 06/02/2012 in Yerawada Mental Hospital, also established that he was not insane but was perfectly normal. He submitted that noting made by the Nurse and endorsed by the doctor at Yerawada Mental Hospital also showed that even during this period from 28/01/2012 to 06/02/2012, the Accused did not display any sign of abnormility in behavior or any sign of insanity.
47. After having considered the entire material which is on record, we are of the view that firstly the prosecution has discharged its initial burden and, on the other hand, the Accused has not established that at the time of doing the act he was either incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law and as such we are of the view that the benefit which is available under section 84 of the Indian Penal Code cannot be availed by the Accused for the following reasons:-
(X-C) Medical Evidence:
48. The medical evidence on insanity has been adduced by the prosecution through the following witnesses viz (1) P.W. 27 â Dr. Rahul Telang (E.N.T.), Sassoon Hospital, who examined the Accused on 25/01/2012 at 2 p.m immediately after he was arrested, (2) P.W. 28 â Dr. Kirankumar Puna Jadhav, who was an Asstt. Professor, (3) P.W.29 â Dr. Vishal Patil, who was Asstt. Professor, Sassoon Hospital and (4) P.W. 31 â Dr. Bhalchandra Manikrao Donglikar, Superintendent of Mental Hospital, Yerawada, Pune who examined the Accused from 28/01/2012 to 06/02/2012.
49. The defence examined D.W. 1 â Dr. Dilip Shankar Burte and D.W. 2 â Pharmacist.
50. Reliance was also placed by the prosecution on certain medical documents which were tendered by the prosecution and which were admitted by the defence and read in evidence under section 294 of the Cr.P.C. viz (1) Exhibit-140 (2) Exhibit-141 and (3) Exhibit-142. Exhibit-141 is an opinion of Dr. Kothastane dated 25/01/2012 who has not been examined by the prosecution as a witness. Dr. Kothastane gave an opinion that the accused needs to be kept under observation and evaluation on a closed indoor psychiatric set up like Regional Mental Hospital, Yeravada. Exhibit-142 is an opinion given by Dr. Mahamunj who examined the Accused on 27/01/2012. Exhibit-142 is an opinion given by Dr. Bhailume, Superintendent, Regional Mental Hospital, Pune.
51. Defennce witness D.W.1 â Dr. Dilip Burte produced on record Exhibit-197 which is the prescription 19/02/2010. Exhibit-198 is the Register which was produced by him and Exhibit-211 is a document shown to D.W.1 Dr. Burte in cross-examination.
(X-D) Conduct of the Accused during the incident.
52. Apart from the above medical evidence, prosecution has brought on record the observation notes of the Nurse which were initialed by the doctor when the Accused was kept in Yerawada Mental Hospital from 28/01/2012 to 06/02/2012. Over and above this evidence, prosecution has examined various witnesses in order to show that the Accused had full knowledge of his action while he was driving the bus viz P.W.15 â Deepak Rajaram Kakade, Police Naik who tried to stop the Accused, P.W. 18 - Amar Shankar Chavan, a Driver of PMT Bus who tried to stop the bus, P.W. 19 â Shivaji Tapare, Police Head Constable, who received the wireless message and P.W.20 â Bapu Laxman Lonkar who was the Police Constable who chased the bus and by climbing the ladder of the bus entered the bus from window No.8 and tried to stop the bus and apprehended the accused. Prosecution has also examined some witnesses to show the conduct of the accused before the incident viz. P.W.2 Vijayanand Sitaram Gulve, Conductor of the bus which was driven by the Accused on a day prior to the date of the incident, P.W. 4 â Balasaheb Sarode, Assistant Traffic Inspector at Swargate S.T. Depot who has brought on record Exhibit-85 which is an application of the Accused seeking medical leave, P.W. 23 â Shashikant Damakale, Assistant Traffic Controller who refused the request of the Accused to give him day duty. This witness also produced service record of the Accused and also his leave record. Prosecution then has examined P.W. 27 â Dr. Rahul Ashok Telang, P.W. 28 â Dr. Kirankumar Puna Jadhav, P.W. 29 â Dr. Vishal Patil and P.W. 31 â Dr. Bhalchandra Manikrao Donglikar. Out of these doctors who examined the Accused the first three have examined the Accused first in point of time on 25/01/2012 and last one being one of the doctors from Panel of four psychiatrist, to show the conduct of the Accused after the incident.
53. Prosecution also has examined the injured witnesses to show the conduct of the Accused and also to show that he was fully alert and had full knowledge of what was happening while he was driving the S.T. Bus and these injured witnesses examined by the prosecution are as follows viz. P.W.5 â Rohini Ravindra Jadhav, P.W. 6 â Aditi Nagnath Kamble, P.W. 8 â Tanaji Namdeo Kale, P.W. 9 â Bhaurao Janardhan Patil, P.W. 10 â Wasim Abdul Gani Bahadur, P.W. 11 â Nishant Deepak Pawaskar, P.W. 13 â Dattatraya Jayawant Mahangare, P.W. 14 â Dattatraya Bhausaheb Mohite, P.W. 16 â Devendra Laxman Patil, P.W. 21 - Santosh Janardan Hendre, P.W. 22 â Surgerao Govind Mastud. Prosecution also examined P.W.24 â Vijay Sahebrao Diwate, Sr Depot Manager and P.W. 30 â Dilip Bansilal Patil.
54. The learned Public Prosecutor submitted that, on the other hand, the Accused had not discharged the burden which was cast on him to show that he was insane since the doctor who was examined by the Accused as a defence witness was disbelieved and the prosecution had succeeded in establishing that the evidence which was given by the Dr. Burte was not only false but it was also fabricated to help the Accused. He submitted that, therefore, the Trial Court was constrained to initiate proceedings against the said witness under section 195 of the Cr.P.C.
55. The learned Counsel appearing on behalf of the Accused has mainly relied on three Exhibits which have been admitted in evidence under section 294 of the Cr.P.C. Viz. Exhibits-140, 141 and 142. It will be necessary therefore to examine these documents to see whether the Accused can get benefit out of the said documents.
56. There is no dispute about sequence of events. The Accused was apprehended and rescued from the public at large who were assaulting him. The Investigating Officer arrested the Accused, prepared an arrest panchanama at Exhibit-138 in the presence of P.W. 30 â Dilip Agarwal and other panch and since he was assaulted by the public who were infuriated by the conduct of the Accused, Investigating Officer (P.W.39) called a team of doctors to examine the Accused viz P.W. 27 â Dr. Rahul Telang (E.N.T.), P.W. 28 â Dr. Kirankumar Jadhav who was a Sugeon, P.W. 29 â Dr. Vishal Patil (Orthopedic) and one Psychiatrist Mrs. Bahale. The injuries of the Accused were treated by the said doctors and the Psychiatrist of the Sassoon Hospital felt that he should be referred for observation in the Mental Health Hospital of Yerawada. He was then sent to the said Hospital and the team of Psychiatrists P.W. 31 â Dr Dongalikar, Dr. Smt. M.R. Bahale, Dr. Himanshu Pendse, Dr. S.B. Gadekar observed the Accused for 10 days from 28/01/2012 to 06/02/2012 and gave an opinion that the Accused was found to be sane and not of unsound mind. They did not notice any abnormility or symptom of insanity at the time of his examination and at the time of commission of the offence. It has to be noted here that immediately after his arrest, he was examined by Dr. Kothastane who was a lecturer in psychiatry at about 2.00 P.M. In the certificate at Exhibit-140 Dr. Kothastane has noted what the Accused informed him and after noting about what the Accused told him, he has given his diagnosis that he has to be kept under observation and he had also advised as under viz (i) medical surgery (ii) detailed history from reliable informant, (iii) needs observation and evaluation on a closed indoor psychiatric set up like Regional mental hospital, Yeravada. In the said report, he has noted as under:-
âHistory reported by him, that he is native of rural Solapur and was on treatment from Dr. Burte, Solapur. He reports that since 12 yrs he is on treatment for abnormal experiences like war is going on, world is going to end, people are going to kill him and hear some voices, not able to tell about them.
He reported that he had omitted medication 2 yrs back as he was feeling well.
He reports since 6 days he had disturbed sleep, feeling of some war
going and that all are going to be killed.
He reports since yesterday had experience like Bhutatkiche Anubhav Yet Hote. Jagatle sagle melyasarkhe vatat hote.
He reports 'Kanat Mrudungache ani chin chin awaz yet hote.
He reports does not understandÂ anything when he drove and about accident.
Currently is well oriented to time, place, person.
Reports occasional alcohol use once in 2 months. Denies recent alcohol use.
No details of H/O medical illness known
O/E external injury marks
Provisional diagnosis -
May I advise
1) Medical Surgery
2) Detailed history from
3) Needs observation
and evaluation in
a closed indoor psychiatric
set up like Regional mental
This certificate has been admitted by the Accused under section 294 of the Cr.P.C. Much emphasis was given by the learned Counsel appearing on behalf of the Accused on this certificate. It was submitted that this witness was not examined by the prosecution. It was submitted that the doctor had recorded that the Accused had informed him that he was taking previous treatment from Dr. Burte, Solapur. It was further submitted that what was reported by the Accused about auditory hallucination also was recorded. It was submitted that on 25/01/2012 itself the doctor had given an opinion that the Accused needs to be kept under observation in the Regional mental hospital Yeravada. It was submitted that, however, only on 28/01/2012 the Accused was sent to mental hosptial, Yeravada.
57. Mr. Shinde, the learned Public Prosecutor submitted that the doctor had also recorded that the Accused was currently well oriented to time, place and person and had advised medical surgery, orthopedic opinion since he had been assaulted by the public at large and the doctor had given an opinion that the Accused needed further observation. It was submitted that in the said certificate doctor did not give any opinion that the Accused was of unsound mind but had only advised that he should be kept under observation.
58. In our view, it will not be possible to come to a conclusion on the basis of this certificate (Exhibit-140) alone that the Accused was of unsound mind, firstly because the doctor, in fact, had noted that the Accused was currently well oriented to time, place and person and, secondly, the doctor had not given any opinion that he was of unsound mind and the doctor had not observed on what was reported to him by the Accused that the Accused appears to be of unsound mind. On the contrary, the observation of the doctor that the Accused was well oriented to time, place and person discloses otherwise. The statement of the Accused about auditory hallucination alone cannot be accepted as showing his state of mind and, lastly, the advise given by the doctor obviously was to ensure that the patient was not seriously injured on account of the assault by the public.
59. Thereafter, the next document on which the reliance is placed by the Accused is Exhibit-141 which is dated 27/01/2012 when the Accused was taken to the Yeravada Mental Hospital. The certificate is in a printed form in which name of the person to whom the certificate is to be issued, his residence, person who is giving the certificate and other details which were left blank were filled in. Exhibit-141, again, has been admitted by the Accused under section 294 of the Cr.P.C and emphasis is laid on the printed format on para 2 and on observation in para 3 of the said printed format. It will be useful to scan the said certificate (page373-374 of the paper-book) and paste it here in order to appreciate the submission made by the learned Counsel appearing on behalf of the Accused.
Much emphasis has been laid on the words âSantosh Maruti Mane is suffering from mental ailment and for the purpose of giving him treatment and keeping him under observation it is necessary to take him in custody and keep him at appropriate place and, thereafter on the next page in para 3 it is printed that âI have formed my opinion on the following reason A) After I myself observed the patient I found the following symptoms regarding his mental ailmentâ. These symptoms are filled in by doctor in his handwriting and in the said certificate at para 3-B) it is printed â The other symptoms (if any) of of the apprehended patient's mental illness communicated by the other person are as underâ. These symptoms and the name of the informant is written by the doctor in his handwriting.
60. In our view since this document (Exhibit-141) is a printed format of Medical Hospital, words âmental illnessâ etc are mentioned. These words do not indicate that, in fact, the patient is suffering from mental illness. The opinion given by the doctor, therefore, is relevant. The opinion/observation given by the doctor about the patient in para 3-A is as under:-
eye contact : established, iII-sustained
psychomotor activity : Normal
Mood :- euthymic Affect : blunt
Thoughts : Delusion of persecution
Delusion of black magic
(Konitari Bhanamati Keli ahe)
of the incident
Auditory hallucination (Gharatlya
lokana konitari marat aslyacha awaz yetoy)
Oriented in T/P/P.
Patient does not clearly remember the incident
Judgment : imparied
insight : Lacking.â
Thereafter, the doctor in para 3-B of the said certificate (Exhibit-141) gave his opinion that the Accused needs observation. In our view, on the basis of this document, it cannot be said that the doctor who examined him in the Regional mental hospital gave an opinion that he was of unsound mind but he has observed that he needs observation. The other information has been given by the Accused himself and, in our view, therefore, from the said document also it cannot be said that the doctor had given an opinion that he was of unsound mind.
61. The next document on which the heavy reliance is placed by the Counsel for the Accused is Exhibit-142. This certificate has been given by Dr. Bhilume who was the Superintendent of Regional Mental Hospital, Yeravada, Pune at the relevant time. Again, this certificate is in a printed format. This doctor has also recorded the information given by the Accused. The Accused informed him that he was not getting sleep for about 10 to 15 days and that he had taken treatment from Psychiatrist Dr. Burte at Solapur about 4 to 5 years back for a period of one year. In the column of observation the doctor has observed regarding patient as under:-
Say Konitari Martil ase vatate, Konitari
Say Aai Vadlanche awaz yetat
Say he does not remember the
incidence of accident clearly. But says
gadi havet udat hoti karnichya bhanat.
Judgment â poor
Insight - poor.â
In our view, however, this Certificate also does not establish that the Accused was of unsound mind. Doctor has merely recorded what the patient had told him and had observed that the accused need to be kept under observation. The submission made by the learned Counsel for the Accused that these three documents clearly established that the at the time when the offence was committed, the Accused was of unsound mind cannot be accepted.
62. On the other hand, the prosecution has relied on the statements of Doctors viz. P.W.27 - Dr. Rahul Telang (E.N.T.) who examined the Accused on 2501/2012 at 2.00 P.M., P.W. 28 - Dr. Kirankumar Puna Jadhav, Assistant Professor, Sassoon Hospital, who examined him at the same time, P.W. 29 â Dr. Vishal Patil, Assistant Professor, Sassoon Hospital and P.W. 31 â Dr. Bhalchandra Manikrao Dongilkar, Superintendent of Mental Hospital, Yeravada, Pune, who has given his observation and diagnosis after observing the Accused from 28/01/2012 to 06/02/2012.
63. P.W. 27 â Dr. Rahul Ashok Telang has stated that at about 2 p.m., the Casualty Medical Officer informed him that one person who has caused road traffic accident was required to be immediately medically examined and the said person was in Crime Branch of Pune. He has stated that, therefore, he alongwith team of other doctors of various departments went to the Crime Branch Office. He has stated that the Medical Officer Kiran Jadhav who was attached with Surgery Department, Dr. Kotasthane attached to Psychiatric Department, Dr. Atul Saroj, attached to Medicine Department went there. He has further stated that when an inquiry was made with the patient about his name, he disclosed his name as Santosh Mane. He has then stated that he narrated history of road traffic accident occurred on 25/01/2012 at 8.30 a.m at Swargate. He further informed that after he was apprehended, he was assaulted by the public at large. Doctor has stated that this history was reduced into writing on the case paper. He then informed the doctor that there was injury on his right year coupled with little bleeding from mouth. Certain questions were asked by the doctor to him as to whether he had difficulty in breathing and whether he suffered convulsion, unconsciousness and vomiting to which the Accused replied in the negative. Then his ear, nose, throat were medically examined by the doctor. Doctor has noted that his pulse was 90, his B.P was 126/80 and that his GCS (Glasgo Coma Scale) was normal. He found that there was CLW over right pinna of size of 3 x .5 x .3 cm.. He also noticed that there was CLW on the left lip on the right side. Doctor has then stated that the injuries were treated by him. Doctor has observed that when he had made queries with the said Accused, he had given him rational answers of all the questions. In the cross examination of this witness (P.W.27) only suggestions were made to the witness that whatever he has stated was not true. Apart from suggestions, there was practically no further cross-examination of the witness. Doctor has produced medical case papers which are at Exhibit-132
64. The next witness which has been examined by the prosecution is P.W.28 â Dr. Kirankumar Puna Jadhav, Assistant Professor, Surgery Department, Sassoon Hospital, Pune. This doctor has stated and reiterated what has been stated by Dr. Telang as to how they were called at the Crime Branch Office. He has further stated that he inquired with the Accused and asked him about his complaint and history. Doctor has stated that the Accused narrated history of road traffic accident which occurred on 25/01/2012 at Swargate, Pune and also informed him that he was assaulted by public at large. This doctor has also stated that he examined him medically and found six injuries. The doctor has then observed that the patient was conscious, well oriented to time, place and person. His sensory and motor system was normal and his Glassgo Coma Test was also normal. He has stated that the speech of the Accused was normal. This doctor has signed the medical paper which is at Exhibit-134. Again, practically, there was no cross-examination of this witness and only few suggestions were made that what he had stated in his evidence was false and he had prepared a false case paper at Exhibit-134.
65. The next witness examined by the prosecution is P.W.29 â Vishal Supada Patil, Assistant Professor, Orthopedic Department, Sassoon Hospital, Pune. He has also reiterated that a team of doctors had gone to Crime Branch Office where he examined the Accused Santosh Mane. He has stated that the Accused narrated history of road traffic accident and complained of certain injuries. Doctor has also stated about his condition. He has stated that his general condition was fair, pulse and B.P was normal. He has noted that injuries which were found on him. He has stated that the patient had not suffered from any orthopedic injury and he was conscious, well oriented to time, place and person. His sensory and motor system was normal and his Glasgo Coma Scale was 15/15. This witness produced case paper prepared by him which is at Exhibit-136. Again, practically6, there was no cross-examination of this witness except few suggestions that his statement was false.
66. Perusal of the evidence of these three witnesses (P.W. 27, P.W.28 and P.W.29) clearly establishes that on the same day after the Accused was arrested, a team of doctors had gone to the Crime Branch Office where the Accused was kept. These doctors obviously were sent firstly to note the general medical condition of the Accused, his psychiatric evaluation and, therefore, P.W. 27, E.N.T specialist examined him to find out whether there was any injury to his ear, nose, throat etc. P.W. 28 was an orthopedic surgeon who examined the Accused to find out whether he had suffered any fracture or whether there was any orthopedic injury. P.W. 29 was also from Orthopedic Department. Dr. Kotasthane, a Psychiatrist attached to Psychiatric Department also examined the Accused and gave an opinion that he was well oriented to time, place and person and that he need to be observed in the Regional Mental Hospital at Yeravada and was to be kept under observation.
67. There is no substance in the submission made by the learned Counsel appearing on behalf of the Accused that Dr. Kotasthane was deliberately not examined since out of four doctors who had gone there, three doctors have been examined and they have mentioned that his condition was normal and he was well oriented to time, place and person and had narrated the entire incident about the accident and subsequent assault on him by the public at large and that he had given rational answers to all the questions which were asked to him. These four doctors, therefore, have noted that his condition immediately after the incident was that of a normal person and they did not find any abnormility in him.
68. The prosecution, therefore, in our view, has brought on record that on the day when the incident took place the Accused was normal, though Psychiatrist had stated that he needed to be kept under observation since he had taken psychiatric treatment from Dr. Burte about four years prior to the incident and secondly on account of what was reported by the Accused to Dr. Kotasthane. The prosecution, therefore, in our view, has established that immediately after the incident had taken place, team of doctors found him to be normal.
(X-E) Conduct of the Accused one day prior to the incident:
69. Prosecution then has examined two witnesses viz. P.W. 2 and P.W.23 to show that one day prior to the incident, the behaviour of the Accused was normal.
70. P.W. 2- Vijayanand Sitaram Gulve was a Conductor of the bus which was driven by the Accused one day prior to he incident i.e. on 24/01/2012 and 23/01/2012. This witness in his evidence has stated that on 23/01/2012, he had attended the duty on ST Bus No. MH-14-BT-0717 which was scheduled to go from Swargate to Ganagapur. He has stated that the Accused was driver of the said bus and at about 8.30 a.m, bus departmed from Swargate bus stop. It reached Bhigwan, Taluka Indapur at 10.30 a.m. He and the Accused had lunch in the bus canteen. Then the bus left Bhigwan at 11 a.m to go to Ganagapur. At about 5.30 p.m, the bus reached Afzalpur and from there he collected 2 dinner tiffins from the mess and then the said bus reached Ganagapur at 6.45 p.m. He and Accused had dinner in the bus itself and they slept in the bus thereafter. He has then stated that on 24/01/2012, he alongwith the Accused went to Ganagapur Bus stand. He then stated that at the Bus Stop, Karnataka Police informed him and the Accused that some strike was to be observed at Afzalpur from 10 a.m and, therefore, he asked them to depart earlier so that they can pass Afzalpur before scheduled time before the strike began. He has stated that, accordingly, he and Accused took the bus at 6.45 a.m from Ganagapur and reached at Afzalpur at 8 a.m. The Accused made entry or arrival of the bus in the control cabin and he came back and informed him that there was nobody present in the control cabin for making entry of arrival of the bus. He has stated that thereafter they left and their bus reached at village Dudhani at 8.30 a.m. Thereafter, they had breakfast in a private canteen. Their bus then reached Akkalkot at 9.30 a.m. The bus then departed for Pune. It reached at Indapur bus stop at 2 p.m. There, the Accused noticed that rear tyre of the bus was punctured. The bus was taken to Indapur depot and the puncture was removed and it reached Swargate at 6.30 p.m and the bus was parked by the Accused in Swargate S.T. Depot. He identified the Accused in the Court as the same person who had driven the bus. Cross-examination of this witness was declined by the Accused. Thus, evidence given by this witness has not been challenged by the Accused. The evidence of this witness clearly discloses that on 23/01/2012 and 24/01/2012 till they reach the Swargate S.T. Depot, the condition of the Accused was perfectly normal and that he had done his duty as a driver properly. Even the bus driver had followed the instructions which were given by Karnataka Police by departing from Ganagapur Bus Depot in advance. This evidence shows that one day before the incident, Accused had not shown any sign of abnormility/insanity and he was well oriented, calm and perfectly normal.
(X-F) Further evidence on conduct of the Accused immediately prior to the incident and, thereafter, during the incident:
71. The next witness is P.W. 23 - Shashikant Shankarrao Damakale. This witness was Assistant Traffic Controller at Swargate Depot. He has stated that on 24/01/2012, he had attended duty at 11 p.m and discharged the same till the next date i.e. 25/012012 till about 8 a.m. He then stated that on 25/01/2012, he was on duty in allocation room and at about 7 to 7.30 a.m. Accused came towards him and requested him to change his night duty to into day single duty. He, however, stated that since single duty was not available, he refused to give such duty to the Accused. He has then stated that the Accused then left the allocation room and at about 7.45 to 8 a.m, he heard some commotion in the Swargat bus stand. He, therefore, came out of the room and noticed that one injured person was lying in the S.T. Stand. He learnt from the people who were presen there that one S.t. Bus had given dash to the injured. He then noticed that one S.T. Bus was coming back in the Bus stand and noticed that the bus was driven by the Accused Santosh Mane. He has stated that he told the Accused to stop the bus. However, he did not pay any attention and he moved the bus out of the Depot and went inside the 'no entry' zone towards Shankarsheth road. He then stated that the S.T. Bus had knocked down many more passengers, vehicles and others. He, therefore, informed about the said incident to their Depot Manager Shri Diwate (P.W.24) He then stated that he alongwith Traffic Controller Limaye (P.W.27) and other bus driver Santosh Hendre (P.W.21) went to Swargate Police Station and the FIR was lodged by the Traffic Controller (P.W.17). He has stated that his statement was recorded on 26/01/2012. He has stated that the S.T. Bus No. MH-14-BT-1532 of Satara Depot was driven by the Accused and he committed the said incident. This witness has produced service record of the Accused and also his leave record which can be taken into consideration at a subsequent stage. The evidence of this witness also clearly discloses that conduct of the Accused before he hijacked the S.T. Bus was normal. He met this witness and made a request for change of duty which request was not acceded to by the witness since single day duty was not available. Upon hearing refusal, the Accused quietly left the place, did not create any commotion, did not show any sign of anger. The prosecution, therefore, in our view, has also established that immediately prior to the incident, the witness did not notice any abnormility in the behaviour of the Accused or any sign of insanity in the Accused.
72. The prosecution has also examined P.W. 4 â Balasaheb Sarode, Assistant Traffic Inspector who has produced leave application made by the Accused at Exhibit-85. He has stated that every bus conductor and driver used to have quota of leave in each month and the bus conductor and driver have to make an application for leave in advance which would be forwarded to the Depot Manager for information and if without giving an intimation if conductor and driver remains absent he would be treated as absent and information accordingly would be given to the Depot Manager who would take action according to the Rules against such person. He has further stated that in case of medical leave, employee has to submit an application with unfit medical certificate which would then be forwarded to the Depot Manager. He has stated that the Accused had taken leave from 19/02/2010 to 19/03/2010 without giving prior intimation. He has, however, submitted an application on 03/03/2010. The said application was forwarded to the Depot Manager. He has stated that alongwith the application, medical certificate was not attached. The Accused, therefore, produced the medical certificate on 19/03/2010. The said certificate indicated that the Accused was suffering from viral hapetities. This witness has then stated in his evidence that the Accused was punctual in discharge of his duties and that he had cordial relations with his superiors and colleagues and that he had not given any scope to complain about discharge of his duties and about misconduct. This witness also has not been cross-examined. In respect of conduct of the Accused, only suggestion made is that his statement that the Accused had given leave application at Exhibit-85 and medical certificate on 19/03/2010 was false. The evidence given by this witness also has not been seriously challenged. This witness, in fact, has stated that the Accused was punctual, his conduct was normal, his relations with his superiors and colleagues were cordial and that he had not given scope to complain about his duty and his conduct. This witness also establishes that conduct of the Accused before the incident was absolutely normal.
73. The prosecution has also examined P.W.31 â Dr. Bhalchandra Mankrao Donglikar, who was Superintendent of Mental Hospital, Yerawada who has given his opinion after observing the Accused when he was kept in the Mental Hospital at Yerawada between 28/01/2012 to 06/02/2012. He has brought on record Exhibits-147 and 148. Exhibit-147 was the Report given by Panel of members who had observed the Accused during this period. Exhibit-148 was the Report regarding observation of the Accused from 01/02/2012 to 06/02/2012. This witness has stated that there was a panel of four psychiatric doctors viz. Dr. Smt. M.R. Bahale, Dr. Himanshu Pendse, Dr. S.B. Gadekar and himself. He has stated that during this period his daily mental status and conduct was observed by the team and daily observation chart was prepared. He has further stated that when the Accused was admitted, Dr. Neel examined him and the Accused has supplied information to all their queries and it was reduced into writing. He has observed that when he was admitted in the hospital, he displayed sesne of easy irritability, suspiciousness and fearfulness. He has, however, stated that such conduct can be seen in every normal person. He has further mentioned that on the date of admission, the Accused was co-operative and conscious, guarded and averagely kempt which is a technical term which means he was neet and tidy. He has stated that his mood was euthymic and that there were no hallucinations and delusions in the Accused. He has further stated that he was well oriented as to time, place and person. He has also stated that the Accused was conscious, relevant, coherent and there were no hallucinations and delusions. There was no psychiatric symptom (abnormality) was found in the Accused during both the periods. Doctor has also mentioned that there was past history of psychiatric treatment taken by the Accused and during evaluation on the first day of the incident, the Accused had disclosed past history of psychiatric treatment taken by the Accused and, therefore, possibility of illness from psychic problem in his life time had not been ruled out. He has further stated that during the relevant period memory and judgment of the accused was found intact. Doctor has then given an opinion that persecutory ideas that somebody had played 'black magic' (karani) does not fall within the category of delusion and hallucination and such persecfutory ideas are based on cultural belief. He has then given his observation that there were no delusions and perceptual disturbance, no apparent hallucinatory behaviour, no obvious manic or depressive features. From the case-papers which are produced by this witness, it can be seen that his behaviour was that of a completely normal person during the entire period. Even the observation made by the Nurse has been produced and from the said observation also, it can be seen that there was no odd behaviour or alarming behaviour from the Accused and that his behaviour was normal throughout this period, though there was fearfulness and anxiety. This witness has been cross-examined but not at great length. The question was asked to him whether electro convulsive therapy (electric shock) was resroted. Doctor has stated that such treatment is applied if the patient is found most violent, having suicidal tendency and post partum psychosis and if the patient is not responding to regular medical treatment. In the cross-examination, this Doctor has stated that in his opinion there was possibility of illness from psychic problem in the life time of the Accused. In cross-examination, the doctor has stated that auditory hallucinations can be found in normal person and it is only one symptom of mental sickness. Nothing, therefore, has come out in the cross-examination of this witness. On the contrary, this witness has clearly stated that during the period he was kept under observation, his conduct was found to be not abnormal.
(X-G) Evidence to show that the Accused was aware of what he was doing during the incident:
74. The prosecution also has then examined number of witnesses to show that the Accused was perfectly aware as to what he was doing, had knowledge about his actions and also consequences of his actions. The prosecution has examined P.W 15 â Deepak Kakade, P.W. 18 â Amar Chavan, PW. 19 - Shivaji Tapare and P.W. 20 â Bapur Lonkar.
75. P.W. 15 â Deepak Kakade, Police Naik, has stated that he was discharging his beat martial duty during the relevant time at the relevant place. He received message at 8.10 a.m from the control roo that one bus driver was driving his bus recklessly, dangerously and in a zigzag manner and that he has to be apprehended. He has then received a second message that the bus driver was taking life of other persons and he had to open fire on tyre of the bus. He has stated that he noticed the said bus at Golibar Maidan and he chased the bus and since the driver was driving in zigzag manner, he had dashed two persons and then near Church, again, one person was knocked down. He instructed the bus driver to stop the buss forthwith. Since he did not, he fired four rounds from his 9 mm Carbine which had 35 rounds. However, it had no effect on the tyres and the bus did not stop. He again went ahead of the S.T. Bus and instructed the bus driver to stop it. Even then instead of stopping, Accused, he has stated, moved the bus towards him so as to give dash with the bus to this motor bike. He has stated that he fired two rounds on the wind screen glass of the cabin of the bus but the wind screen glass was not broken and, again, driver made an attempt to run the bus on his person. Rider of the bike therefore moved him to one side in order to avoid any mishap. This witness, thereafter, chased the bus till the buss driver was apprehended. He has then stated that he identified the Accused in test identification parade. Nothing has come out in the cross-examination of this witness. None of his substantive evidence has been challenged in the cross-examination except making a suggestion that photo of the Accused was flashed in all daily news-papers and, therefore, he has seen his photo before the test identification parade. The evidence of this witness clearly discloses that the Accused while driving the S.T. Bus was absolutely in control of the vehicle, he was understanding the consequences of his action and that there was a method in his madness. He even tried to bog down the witness on two occasions; once when he overtook the S.T. Bus and gave instructions to him to stop and secondly when he fired on the wind screen. There was no sign of any abnormality or madness in the Accused seen by this witness.
76. P.W. 18 â Amar Shankar Chavan is another witness who tried to stop the bus and was an eye witness of the said incident. He has stated that when he reached at Swargate S.T. Depot, he noticed that one S.T. bus was coming out of the out-gate. It gave dash to one banana and orange 4-wheeler cart and then to auto rickshaw. Then the S.T. Bus came in contact with Mini bus. He has stated that behind the Mini bus, there were barricades and there was no chance to move the bus ahead. He has stated that at that time bus driver applied reverse gear of the bus and reversed the same and the bus was moved on the wrong side and it came in contact with Tata Magic Vehicle and one Xyllo Jeep. At that time the bus had sopped and, therefore, he alongwith his companion Nanajkar rushed towards the bus and opened the driver's side gate and, thereafter, he tried to apply its hand brakes. However, at that time, the bus driver gave a kick blow over his chest, as a result of which he fell down near the bus on road and, thereafter, the bus driver took the bus from the wrong side. He then stated that one PMPL trainee driver tried to obstruct the bus. However, the bus driver tried to drive the bus on him. There is no serious cross-examination of this witness and most of the testimony of this witness has gone unchallenged. The evidence of this witness also corroborates the evidence of P.W. 15 â Police Naik Deepak Kakade and shows that the Accused Santosh Mane was very much in his senses. He was in complete control of the vehicle. Whenever he came across the small vehicles which obstructed his path, he gave dash to them and then when his bus stopped on account of the bus entangling with Mini bus and barricades, he moved it in reverse direction and took it from the road which was available to him, though it was going on the wrong side of the road. When this witness tried to stop him by applying the hand-brake, he gave a blow on his chest and, thereafter, continued to drive the vehicle.
77. P.W. 19 â Shivaji Tapare was serving as driver on Tata Sumo Vehicle of Assistant Commissioner of Police, Swargate Division. He has stated that he was also chasing the bus on account of wireless message received by them. He has seen how the Accused was driving the S.T. Bus. When he chased the bus by switching on his siren and head lamp lights, he noticed several injured persons on the road and several vehicles which were damaged. He gave instructions to the driver to stop the vehicle and they were informed by the public who were standing there to remove the jeep since the driver was not stopping his vehicle. They, therefore, moved their jeep towards one side. He has stated that one P.M.T. Bus was standing there and some passengers were getting down. The S.T. Driver gave a dash to the P.M.T. Bus to the right side of the bus, as a result of which it was lifted upward. He has stated that P.M.T. Bus was carrying 25 to 30 passengers and he has stated that after giving such a dash, the said S.T. Bus proceeded to Khanya Maruti Chowk. Then he has stated about the attempt made by one Police Officer to enter the bus by catching backside of its ladder. He has then stated that the Police who had effected entry on the roof of the bus, had effected entry in the bus through window and the bus, in the meantime, had damaged barricades, electric pole and then it reached near the stop-of one Samadhan Bhel and dashed to 4-wheeler and then it stopped. The driver was apprehended and assaulted by the public who had gathered there. He has then stated that the driver made an attempt to run away from the place where he was apprehended. In the cross-examination of this witness, some attempt was made to question the incident of the police going on the roof of the S.T. Bus. Practically his entire testimony has gone unchallenged. This witness also corroborated the statements of P.W. 15 and P.W. 18 about conduct of the Accused and his imminently reckless behaviour of driving the vehile through the crowded road unconcerned about damage to public property and lives of the people who were crushed to death under his vehicle.
78. Prosecution has finally examined P.W. 20 â Bapur Lonkar who was successful in stopping the vehicle. He is also an eye witness to the said incident who saw the bus running through the crowded road of Pune injuring and killing the people damaging the other vehicles and public property. He has stated how he entered in the bus from the window and asked the Accused why he as killing the persons and asked him to stop the bus. He has stated that the Accused looked at him angrily and told him that he had no business to say anything to him. This witness has stated that he then tried to move the steering of the bus by his hand and the driver of the bus pushed him by his left hand and due to that balance of the bus driver was lost and the bus gave dash to the road divider and then two cars and one auto rickshaw and then it stopped near Samadhan Bhel shop. He has stated that the people then rushed towards the driver's cabin and assaulted the bus driver. Again, cross-examination of this witness does not demolish his testimony. Some minor discrepancies were tried to be pointed out in his statement recorded by the Police and in his evidence given before the Court. However, these minor discrepancies, if any, do not demolish the substantive evidence given by him in the Court. The prosecution, therefore, has clearly established that the Accused was aware of his action and he continued to keep driving irrespective of the obstacles which he had faced and had prevented the witness from stopping him and even though he was killing the people, he had angrily retorted that witness had no business to tell him anything.
(X-H) Defence evidence in support of the plea of insanity:
79. On the other hand the Accused has examined defence witness viz. D.W. 1 â Dr. Dilip Burte. This witness has stated that he has a degree in M.D in Psychological Medicine and Diploma in Psychological Medicine and he is practicing as Psychiatrist at Solapur from 1977. He has stated that the Accused had been to his consulting room on 19/02/2010 and he was brought to him by his brother. He has then stated that the Accused informed him that he was suffering from disturbed sleep, loss of appetite and had palpitations. He also informed him that he had persecutory complex, had voices in ear and he felt sad and also had entertained suicidal thoughts at times. He has then stated that he was examined by him and he was found to be non-cooperative, restless, irritable, elated and over talkative and there were no hallucinations, delusions of persecutions were present. He has also stated that his orientation, memory and intelligence were found not impaired and his insight and judgment were found poor. He, therefore, made a diagnosis that the Accused was suffering from mania. He has then stated that he prescribed drugs and gave a prescription which is brought on record at Exhibit-197. He has also prescribed electro convulsive therapy and has stated that it was applied to him. Then the doctor has stated that the Accused was examined by him on 22/02/2010, 25/02/2010, 13/03/2010, 31/05/2010, 23/08/2010 and 24/06/2011 and lastly on 02/08/2011. He has then stated that Electro Compulsive Therapy (Electric Shock Therapy) was applied to the Accused on 19/02/2010, 22/02/2010, 25/02/2010, 01/03/2010, 04/03/2010 and 12/03/2010 and entries were made in Exhibit-197. He has also produced the patient's history sheet maintained by him in the register which is at Exhibit-198. He has stated that on 25/01/2012, police came to his clinic at 9 p.m and he had informed the police that in his opinion the Accused had suffered from mental illness. He also admitted that he had given interview to the Print Media and Electronic Media on 25/01/2012 about the incident.
80. From the examination-in-chief of D.W. 1 â Dr. Dilip Burte, it has to be noted that entire evidence which has been given by this witness pertains to the period when the Accused was examined by him in his consulting room on 19/02/2010 and on the dates mentioned in his evidence for all practical purposes would only show that some treatment for psychiatric illness was given to the Accused about two years prior to the incident. It does not disclose condition of the Accused on the date of the incident and in view of the settled position in law even if his entire evidence is accepted, it does not exonerate the Accused from liability about the act committed by him in 2012 nor can he avail of the benefit of putting his case under general exceptions under section 84. However, from the cross-examination of this witness (D.W.1) by the public prosecutor, it can be seen that testimony of this witness that he had given Electro Convulsive Treatment to the Accused has been convincingly demolished by the prosecution. The prosecution while cross-examining this witness has also created doubt about maintenance of the Register and about the prescription which was given to the Accused. This witness in the cross-examination, in fact, has admitted that Section 20 of the Mental Health Act 1987 was not attracted to the Accused and he went to the length of saying that at the time of diagnosis of ailment of the Accused and medical examination, he never thought that the Accused would move the S.T. Bus dangerously and cause death of pedestrians and others. He also admitted that he had never given instructions to the Accused and his brother not to allow the Accused to move to move any vehicle. This admission in the cross-examination severely damages the case of the Accused that he was suffering from such kind of mental ailment or illness on account of unsoundness of mind, making him incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The witness examined by the defence, in fact, has demolished the theory of unsoundness of mind and insanity of the Accused. He has then admitted that when he examined the Accused on 19/02/2010, papers of previous medical examination from other hospital were not perused and no history about the earlier ailment has been mentioned in the history sheet â Exhibit-199. He also admitted that the patient did not give history correctly and the case of patient about addiction of alcohol narrate that he consumed alcohol occasionally. He also admitted that rorsehah test was not conducted of the Accused. Similarly thematic apperception test was also not conducted.
D.W.1, thereafter, has admitted that in the original history sheet Register of patient, there is a paging from page no.4706 to 4752 serially. However, after page no.4752, serial number is not maintained in the Register and after page no.4752, page no.4553 is mentioned. He has admitted that the last page was the Register bears page no.4706. He has also admitted that on page nos. 4553 to 4580 of the original register there is no mention of psychiatric evaluation of the respective patients examined by him on the respective dates. Similarly, he has admitted that such history on page nos. 4582 to 4594 is also not mentioned. Similar, omission is there on page 4598 to 4606. He has also admitted that on page 4605 without collecting psychiatric history he had diagnosed the ailment. He has also admitted that in the said Register before 19/02/2010 and after the said date, there is no mentioned about psychiatric examination of the concerned patients conducted by him.
D.W.1 has then admitted that he had not mentioned page numbers on his letterhead and that in the prescription at Exhibit-197, after the date of prescription 22/02/2010, there was empty space on the letterhead still on the same letterhead on its right side, he had mentioned prescription dt. 24/2/2010. He admitted that endorsement on the backside of Exhibit-97 dated 25/02/2010 was not in his hand writing. This witness was then confronted with a Xerox copy of his hospitals building history sheet dated 19/2/2010 and he admitted the said case papers were true and correct as per the original and they were marked as Exhibits-210 and 211. He then admitted that on Exhibit-211 there was no mention of medical examination of the Accused on 25/2/2010 and about ECT (Electric Shock Treatment) being given to the Accused. He then admitted that he had given an interview to the media about the Accused and that the statement made by him before the media had appeared in the next day's daily newspapers in the said form. He also admitted that in the interview he had given medical statement that he had examined the accused only once for his treatment and, thereafter, he did not appear again. Finally, he has admitted that Exhibit-99 â history sheet is silent as to on which date, time and of what voltage capacity ECT was applied to the Accused and only once the consent of the relatives of the Accused was taken for treatment. He has also admitted that Exhibit-199 was silent about consent of the patient or his relatives in respect of the further treatment. He has also admitted that Exhibit-199 is also silent on name, age, address of the person given consent to ECT. He also admitted that Exhibit-199 did not mention whether the patient was violent or not.
81. In our view as a result of cross-examination of this witness (D.W.1), his entire testimony has been demolished and it will not be possible to rely on the testimony of this witness. The Trial Court, therefore, has rightly not accepted the version given by this witness that ECT treatment was given to the Accused. And the Trial Court has gone to the extent of issuing perjury notice to this witness on account of the false evidence given by him before the Court. The Trial Court also observed that the prescription which was produced by the witness was fabricated. However, we do not accept the said finding of fabrication since it appears that when the xerox copy was produced, the person who took out the xerox copy of the original, not only took Xerox copy of the first page of the prescription but also of what was written on the next page below the front portion of the first page. The Trial Court, it appears that therefore carried an impression that the witness had fabricated the prescription. We have seen the original prescription and also the Xerox copy and the other rightly xeroxed copy of the front and back portion of the said prescription. We are satisfied that there was no fabrication of the document on the basis of incorrect xeroxing of the said document. However, the fact remains that from the prescription Exhibit-197 and the register which is mentioned, there is no conclusive evidence that the witness Dr. Burte had examined the Accused on all dates on which he said the Accused was examined by him There are also lot of discrepancies found in the Register Exhibit-199 and this fact has been admitted by the witness and, therefore, no reliance can be placed on the testimony of this witness that the patient had been examined by him on those dates. However, it does appear that the Accused was examined by him on 19/02/2010 and some medicines were prescribed which appear to have been purchased by the Accused which is evident from the receipts issued by the Farmacist P.W.2 â Shete. However, beyond that, in our view, it cannot be accepted that ECT was applied to the Accused as stated by the witness or that he was examined on various dates mentioned by him in his evidence. Further, the doctor has also admitted that when he gave an interview to the press and electronic media, he had in categorical terms stated that the Accused had been to his clinic only once. All these admissions in the cross-examination created a grave doubt about testimony of this witness. Apart from that, from whatever evidence which is given by him it does not show that the Accused's cognitive faculties were completely or gravely impaired. Had it been show, he would have advised the Accused or his brother not to permit the Accused to drive the vehicle or he would have promptly informed the S.T. Authorities that the Accused should not be given task of driving the vehicle. In fact, his very admission that he never thought at the time of diagnosis of the ailment of the Accused that the Accused could move the S.T. Bus dangerously and cause death of the pedestrians. In our view, therefore, testimony of the defence witness is not of any assistance to the Accused. On the contrary, it supports the prosecution case.
(X-I) Judgments relied upon by the defence on the plea of insanity:
82. The learned Counsel appearing on behalf of the Accused has relied upon the judgment of Division Bench of this Court in Tikaram Krishnalal Pandey vs. State of Maharashtra (2013 CRI.L.J. 2419). He submitted that in the said case on the basis of evidence of the doctor who was examined and gave an opinion that the Accused was suffering from paranoid schizophrenia and was not mentally sane, the Division Bench held that the Accused was entitled to the benefit of section 84. We have perused the said judgment. In our view, ratio of the said judgment will not apply to the facts of the present case since the medical evidence which has been brought on record in that case clearly showed that the Accused was not mentally sane and he was also suffering from paranoid schizophrenia. In the present case, however, we have, after examining the evidence on record, held that the Accused was not insane.
The learned Counsel for the Accused then relied on the judgment of Division Bench of this Court in Ms. Leena Balkrishna Nair vs. State of Maharashtra (2010 ALL MR (Cri) 1740). He submitted that the Division Bench had held that the Accused was entitled to the benefit of section 84. After examining the conduct of the Appellant, it came to the conclusion that the Appellant accused was mentally unsound on the date of the incident. We have perused the said judgment. In paras 16, 18 and 19 the Court considered the evidence on record and observed that under section 5 of the Indian Lunacy Act IV of 1912 Reception Order was passed by the Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai and doctor also gave an opinion that the Accused did not respond properly and, at times, she used to sit by keeping her hands over ears for long time and at that time, she never used to talk to anybody and never used to answer any question. In our view, facts in the said case being different, observations made by the Division Bench will not apply to the facts of the present case.
Reliance was also placed by the learned Counsel appearing on behalf of the Accused on the judgment of Kerala High Court in Unniri Kannan vs. State (AIR 1960 KERALA 24)In this case, admittedly, the Accused who killed his mother, was suffering from periodic epileptic fits. There was clear medical evidence on record to that effect. Ratio of the said judgment, therefore, will not apply to the facts of the present case. The learned Counsel for the Accused then relied on the Judgment of Division Bench of this Court in Balu Ganpat vs. State of Maharashtra (1983 CRI.L.J. 1769). In the said case, the Court observed that in a case where accused is alleged to be of unsound mind, it is the testimony of relation that is of considerable assistance in reaching a fair and just finding one way or the other. He submitted that it was the duty of the prosecution to have examined relatives of the Accused and, therefore, benefit of doubt ought to have been given to the Accused. We are unable to accept the said submission. In the present case, there is overwhelming evidence on record which shows that the Accused was perfectly sane when he committed the said offence. Ratio of the said judgment is, therefore, not applicable to the facts of the present case. The learned Counsel for the Appellant thereafter relied upon the judgments of Division Bench of this Court in Shriram vs. The State of Maharashtra, (1991 CRI.L.J. 1631) Prakash vs. State of Maharashtra (1985 CRI.L.J.196) and in Motiram S/o. Maroti Dhule vs. State of Maharashtra (2002 (2) B.Cr C 9171). He has also relied upon the judgment of the Apex Court in Shrikant Anandrao Bhosale vs. State of Maharashtra (2003 (1) B.Cr C 242). We have perused the said judgments, in our view, facts in the said cases are entirely different and, therefore, ratio of these judgments will not apply to the facts of the present case.
(X-J) Final finding on the plea of insanity:
83. We are, therefore, of the view that the Accused is not entitled to get the benefit of section 84 of the Indian Penal Code and that the prosecution has discharged its initial burden. On the other hand, the Accused is unable to prove the he is entitled to get benefit of section 84 after committing the said act. The Point No.7, mentioned in para 11 above is accordingly answered in the negative.
(XI) Reasoning on the question of confirmation of death penalty:
84. The next question which falls for consideration is regarding confirmation of the death penalty awarded by the Trial Court.
85. It has to be seen by us, whether special reasons given by the Trial Court for awarding death penalty to the Accused as contemplated under section 354(3) are sufficient and valid for the purposes of confirmation of the death sentence or whether the death sentence needs to be commuted to life imprisonment.
86. In Bachan Singh vs. State of Punjab (1980) 2 SCC 684), validity of death penalty which is provided for the offence of murder under section 302 of the IPC was challenged as unconstitutional as also the procedure of sentencing provided in section 354(3) of the Cr.P.C. on the ground that that it invests the court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life. The validity of death penalty and provisions of section 354(3) were upheld in Bachan Singh (supra).
87. The Apex Court in Machhi Singh and Others vs. State of Punjab (1983) 3 SCC 470) further standardized and categorized various types of cases of murder into five categories which justify imposition of death penalty. The Apex Court also culled out guidelines indicated in Bachan Singh (supra). In paras 38, 39 and 40 which read as under:-
â38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.â
â39. In order to apply these guidelines inter-alia the following questions may be asked and answered :
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?â
â40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.â
In para 33 of the said Judgment, it has made various categories of cases under the caption (I) Manner of commission of murder. In para 34 it has given the instances of motive under caption (II) Motive for commission of murder. In para 35, it has given the instances of Anti-social or socially abhorrent nature of the crime under caption (III). In para 36, it has given the instance of Magnitude of crime under caption (IV) and in para 37, it has stated about Personality of victim of murder under caption (V).
88. Taking into consideration the aforesaid guidelines laid down in the two judgments, we have to take into consideration whether the facts in this case justify imposition of extreme death penalty.
89. The learned Counsel appearing on behalf of the Accused has relied on the following judgments:-
|Sr No.||Name of the parties||Citation|
|1.||Gopalan Nair vs. Satate of Kerala||AIR 1973 SC 806|
|2.||Panchhi and Others vs. State ofU.P.||(1998) 7 SCC 177|
|3.||Manohar Lal alias Mannu and Anr.vs. State (NCT) of Delhi||(2000) 2 SCC 92|
|4.||Prakash Dhawal Khairnar (Patil)vs. State of Maharashtra||(2002) 2 SCC 35|
|5.||Dilip Premnarayan Tiwari vs. Stateof Maharashtra||2010 CRI.L.J.905|
|6.||Sandesh Kailash Abhang vs. Stateof Maharashtra||2013 CRI.L.J.651|
|7.||State of Rajasthan vs. Devilal||2013 CRI.L.J.1963|
|8.||Sangeet and Anr. vs. State ofHaryana||2013 CRI.L.J.425|
|9.||Mohinder Singh vs. State ofPunjab||2013 CRI.L.J.1559|
|Sr No.||Name of the parties||Citation|
|1.||Jashubha Bharatsingh Gohil andothers vs. State of Gujarat||(1994) 4 SCC 353|
|2.||State of Karnataka vs. Krishnappa||(2000) 4 SCC 75|
|3.||Devender Pal Singh vs. State of NCT of Delhi and Another||(2002) 5 SCC 234|
|4.||State of Rajasthan vs. Kheraj Ram||(2003) 8 SCC 224|
|5.||Sushil Murmu vs. State ofJharkhand||(2004) 2 SCC 338.|
|6.||State of M.P. Vs. Munna Choubey and Another||(2005) 2 SCC 710|
|7.||Bablu alias Mubarik Hussain vs.State of Rajasthan||(2006) 13 SCC 116|
|8.||C. Muniappan and Others vs.State of Tamil Nadu||(2010) 9 SCC 567|
|9.||Ramnaresh and Others vs. Stateof Chhattisgarh||(2012) 4 SCC 257|
|10.||Deepak Rai vs. State of Bihar||(2013) 10 SCC 421|
|11.||State of Rajasthan vs. Jamil Khan||(2013) 10 SCC 721|
|12.||State Through Reference vs. Ram Singh and Ors||Death SentenceReference No.6/13|
92. It will be first necessary to take into consideration the aggravating circumstances which are as follows:-
(i) Accused was perfectly normal on the day prior to the date of incident and P.W.2 has deposed about his conduct which has not been challenged by the Accused.
(ii) On the day of incident, the Accused went to the allotment room and requested P.W.23 for change of duty and on the refusal by P.W.23, he quietly and calmly left the place without displaying any sign of anger or unsoundness of mind.
(iii) He then coolly went and sat into the S.T. Bus which was not assigned to him but was assigned to other Driver. He started the bus with the key which was available with him and hijacked the bus and used it as a killing machine.
(iv) He drove the vehicle in blind rage unmindful of the only consequence of such action which was death of innocent persons and destruction of private and public property. He did this with utter disregard to the pain and loss of life caused to 9 people and grievous injuries to 37 persons.
(v) When the ST Authorities implored upon him to stop the vehicle and requested and pleaded to him not to go any further, he continued to commit his brazenly wanton act of leaving a trail of blood, killing innocent young men and women.
(vi) Several witnesses have given evidence that they tried to stop him, firstly by putting barricades. He either drove through the barricades when possible or stopped the vehicle and, thereafter, took it in reverse direction and then took the first available road which was in his sight, ignoring the fact that he was driving on the wrong side of the road or in a lane which showed no entry sign.
(vii) The conduct of the Accused prior to the incident, during the incident and after the incident showed that there was no shred of insanity in him and that he was acting in a cool, calculated and diabolic manner in cold rage on account of refusal by the ST Authorities to accede to his request of changing his night duty to day single day duty.
(viii) Such was the reaction of the of the public at large that may scooters, vehicles started chasing the bus in an attempt to stop him. Barricades were put up by the public at large and also by police. One police martial tried to shoot him with his carbine which was loaded with 35 bullets, yet this did not deter the Accused from continuing with his carnage.
(ix) The Accused was very well aware of the consequences of his recklessly driving the ST bus on the crowded roads of Pune and that too in the wrong direction or in the no entry zone.
(x) The Accused was perfectly aware of avoiding to run into heavy vehicles which would endanger his life which reflects that he was perfectly aware of what he was doing and what would be the consequences of the said action and the said action was illegal and was having disastrous consequences on the lives of the people and public property.
(xi) He displayed sharp reflexes not only in driving the vehicle but also in trying and avoiding heavy vehicles but also showed presence of mind of not allowing any one to enter his bus which is reflected from the fact that when P.W.18 tried to enter the main door, he gave a kick on his chest and threw him out of the vehicle. When the martial tried to shoot him with his carbine, he tried to run over his bus on his bike and made an attempt to kill him.
(xii) The Accused did not show any compassion to people, he killed : (a) The first victim was a lady who was being dropped by her husband P.W.1 to the ST Bus Stand, (b) One student Mr. Pise was dragged for about 100 meters and then died on the spot, (c ) One girl Pooja Patil was knocked down from her scooter, (d) he rammed into rickshaws, scooters, bikes, mini buses, cars, barricades throughout the time he was driving his vehicle.
(xiii) When he was in observation home, he had remarked twice that State Transport Corporation had ruined his entire life which showed that there was a motive behind the commission of the said act.
(xiv) Service book of the Accused which has been produced on record shows his past history that he had committed several accidents in the past and was fined and his increments were stopped and departmental inquiry was proposed to be held against him. He therefore had an axe to grind against the Corporation and his anger at the Corporation was given vein to by driving the vehicle in crowded road and he knew fully well that his act was pre-imminently dangerous and without any lawful excuse.
(xv) The Accused has not shown any sign of remorse either after incident or during the time he was kept under observation in the Mental Hospital.
93. On the other hand, mitigating circumstances are as under:-
(i) He was treated by Psychiatrist two years before the incident.
(ii) He came from poor, humble background.
(iii) He had a family of wife and children who have to be looked after.
(iv) There was no motive to kill a particular person.
94. Taking stock of both aggravating and mitigating circumstances, it can be seen that aggravating circumstances far out number the mitigating circumstances and, therefore, in our view this is a fit case which would fall in the category of rarest of rare cases and also under clause-IV of the judgment of the Apex Court in Machhi Singh (supra) in which it has been observed as under:
IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committedâ.
The Apex Court has also observed that the Court has to take into consideration the circumstances not only of the case but also of the criminal.
95. In the present case, we are of the view that there is no possibility of reformation of the Accused. The Accused, in the past, has committed several accidents and has been fined and his increments have been stopped. On one occasion he rammed his ST Bus at tunnel wall putting his passengers at risk. There is no guarantee that even if he is kept in jail, he would not hijack one of the police vehicles and further commit the same offence which he has now committed.
96. The Accused is in service as ST Driver since 1999. He comes from humble background. It has been held in several cases by the Apex Court that poverty alone cannot be the ground for commutation of death sentence. In our view, therefore, even the circumstances about the criminal are not such as to give him benefit of commutation of sentence from death to life. The Apex Court in several cases also has observed that public outcry is one of the important factors which will have to be taken into consideration while considering the question of awarding death sentence.
97. The learned Public Prosecutor appearing on behalf of the State has submitted that public outcry is also one of the grounds which has to be taken into consideration while considering whether the case should be treated as rarest of rare cases. In this context observations made by the Apex Court in its various judgments would be relevant.
In Jashubha Bharatsingh Gohil and others vs. State of Gujarat (1994) 4 SCC 353), the Apex Court has observed in para 12 as under:-
â12. It is needless for us to go into the principles laid down by this Court regarding the enhancement of sentence as also about the award of sentence of death, as the law on both these subjects is now well settled. There is undoubtedly power of enhancement available with the High Court which, however, has to be sparingly exercised. No hard and fast rule can be laid down as to in which case the High Court may enhance the sentence from life imprisonment to death. Each case depends on its own facts and on a variety of factors. The courts are constantly faced with the situation where they are required to answer to new challenges and mould the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. The change in the legislative intendment relating to award of capital punishment notwithstanding, the opposition by the protagonist of abolition of capital sentence, shows that it is expected of the courts to so operate the sentencing system as to impose such sentence which reflects the social conscience of the society. The sentencing process has to be stern where it should be.â
In State of Karanataka vs. Krishnappa (2000) 4 SCC 75), the Apex Court has observed in para 18 as under:-
â18.......... Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court..........â
In Devender Pal Singh vs. State of NCT of Delhi and Another (2002) 5 SCC 234), the Apex Court has observed in para 59 as under:-
â59. As the factual scenario of the present case shows, at least nine persons died, several persons were injured, a number of vehicles caught fire and were destroyed on account of the perpetrated acts. The dastardly acts were diabolic in conception and cruel in execution. âTerroristsâ who are sometimes described as âdeath merchantsâ have no respect for human life. Innocent persons lose their lives because of mindless killing by them. Any compassion for such persons would frustrate the purpose of enactment of TADA, and would amount to misplaced and unwarranted sympathy. Death sentence is the most appropriate sentence in the case at hand, and learned trial Judge has rightly awarded it.â
In State of Rajasthan vs. Kheraj Ram (2003) 8 SCC 224), the Apex Court has observed in para 34 as under:-
â34..........In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holder of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community (SCC pp. 487-88, paras 32-33).
In State of M.P. vs. Munna Choubey and Another (2005) 2 SCC 710), the Apex Court in paras 9, 10 and 12 has observed as under:-
â9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be â a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. [(1987) 3 SCC 80 : 1987 SCC (Cri) 379 : (1987) 2 SCR 710] this Court while refusing to reduce the death sentence observed thus:
"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."â
â10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463]â
â12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.â
In Bablu alias Mubarik Hussain vs. Sate of Rajasthan (2006) 13 SCC 116), the Apex Court in para 14 has observed has under:-
â14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] wherein it was observed thus : (AIR pp. 345-46, para 10) '10......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'â
In C. Muniappan and Others vs. State of Tamil Nadu (2010) 9 SCC 567), the Apex Court has observed in para 91 as under:-
â91. Thus it is evident that criminal law requires strict adherence to the rule of proportionality in providing punishment according to the culpability of each kind of criminal conduct keeping in mind the effect of not awarding just punishment on the society. The ârarest of the rare caseâ comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. Where an accused does not act on any spur of the moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime.â
In Ramnaresh and Others vs. State of Chhasttisgarh (2012) 4 SCC 257), the Apex Court in para 80 has observed as under:-
â80. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death.â
In Deepak Rai vs. State of Bihar (2013) 10 SCC 421), the Apex Court in para 60 has observed as under:-
â60. This Court has consistently held that only in those exceptional cases where the crime is so brutal, diabolical and revolting so as to shock the collective conscience of the community, would it be appropriate to award death sentence. Since such circumstances cannot be laid down as a straitjacket formula but must be ascertained from case to case, the legislature has left it open for the courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence.â
In State of Rajasthan vs. Jamil Khan (2013) 10 SCC 721), the Apex Court has observed in para 16.2 as under:-
â16.2. Poverty shall not be understood and applied as disjunct from the factual position. In other words, poverty or socio-economic, psychic or undeserved adversities in life shall be considered as mitigating factors only if those factors have a compelling or advancing role to play in the commission of the crime or otherwise influencing the criminal. Thus, merely because the offender is a poor person, his poverty will not be a mitigating factor.â
In State Through Reference vs. Ram Singh and Ors. Death Sentence Reference No.6/2013 CRI APP. NOS.1398/2013, 1399/2013 and 1414/2013) the Apex Court (Pratibha Rani, J.) has observed in para 21 as under:-
â21. In this regard, suffice it to note that it is the duty of the Court to impose appropriate sentence having regard to the nature of the crime and the pre-planned manner in which atrocities were committed on the hapless victim, having due regard not only the rights of criminal but also that of the victim. The cruel acts committed by the convicts are such that if appropriate sentence is not awarded, rage of the society would not be satisfied and our justicing system would be rendered suspect. This would be having devastating effect as common man will lose faith in the Courts. Any leniency shown in the matter would not only be misplaced but would give rise to a feeling of private revenge among the people leading to lawlessness in the society. The Court would not like such a situation to prevail. The victim has been subjected to such a cruelty which is extremely brutal, inhuman and unheard of. The convicts indulged in a deliberately planned crime and meticulous execution by alluring the victim and her fried (PW-1) in the bus pretending to be ferrying passengers to the destination. It may be noticed that except the young age of the convicts and dependence of their family on them, learned counsel for the convicts could not point out any other mitigating circumstance. On the contrary, the case discloses only aggravating circumstances which have been referred to above. Thus, irrespective of the fact whether the death sentence has deterrent effect or not, to award lesser punishment to the convicts by letting them escape the death penalty would do more harm to the justice system.â
98. From the observations made by this Court in the aforesaid judgments, it is abundantly clear that public outcry or impact of the criminal act on the society at large also has to be taken into consideration as one of the factors for the purpose of considering the question of confirmation of death sentence after the Court has taken stock of the mitigating and aggravating circumstances.
99. In the present case, the death of 9 persons and injuries caused to 37 persons at the hands of the Accused sent shock-waves throughout the City of Pune and entire Maharashtra. In our view, therefore, this additional factor also cannot be ignored by the Court and for that reason also confirmation of the death sentence would be justified.
100. The learned Counsel appearing on behalf of the Accused has, in support of his submission that death penalty should be commuted to life, has relied on number of judgments. The first judgment is in Gopalan Nair vs. State of Kerala (AIR 1973 SC 806). In the said case, the Apex Court, in para 3, has observed as under:-
â3. We concur with the view of the High Court that it had been proved beyond doubt that it was the appellant who had murdered Gouri Amma and that he was not entitled to the benefit of section 84 of the Indian Penal Code. But we are unable to appreciate why the extreme penalty of death should have been inflicted on the appellant in the circumstances of this case. Firstly, there can be no manner of doubt that he had some sort of mental trouble prior to the date of the occurrence. There is nothing to show that he was not suffering from mental obsession which may not amount to insanity but which would affect a person's mind in a way quite different from that of a normal person. The appellant seemed to harbour some sort of grudge that his trouble was due to the evil influence of Gouri Amma. If he had been quite normal his reactions might have been different. He was in all likelihood not in a position to weigh and analyse in a rational manner whether his trouble could be due to the reason mentioned before. Nor is it clear from the prosecution evidence as to what transpired between Gouri Amma and the appellant before he started stabbing her. In other words, the origin of the incident is not known. In our judgment this is not a case in which the penalty of death should have been inflicted.â
From the perusal of the above observations, it is obvious that the Supreme Court has observed that there was nothing to show that he was suffering from mental obsession which may not amount to insanity but which would affect person's mind in a way quite different from that of a normal person. The Apex Court, therefore, commuted the death sentence to life sentence. Unfortunately for the Appellant/Accused in the present case, there is sufficient evidence on record to prove his sanity on the date of commission of the offence.
The second judgment on which reliance has been placed by the learned Counsel for the Accused is in Sandesh alias Sainath Kailash Abhang vs. State of Maharashtra (2013 CRI.L.J. 651). The Apex Court, in this case, has observed that the Accused was not hardened criminal with no possibility of reformation. It further observed that considering the mental state of the Accused, his normal behaviour and other relevant considerations, imposition of death penalty was not warranted.
Such are not the facts in the present case as stated hereinabove and therefore, ratio of the said judgment (2013 CRI.L.J. 651) will not apply to the facts of the present case.
The learned Counsel for the Accused then relied upon the judgment in Dilip Premnarayan Tiwari and Anr. vs. State of Maharashtra (2010 CRI.L.J. 905). The Apex Court, in this case, has observed that merely because many persons were murdered could not by itself be sufficient to justify the death sentence and it also observed that apart from the nature of the crime, background of the criminal, his psychology, his social status, his mind set for committing the offence are also relevant. Again, there cannot be any dispute about the said proposition. However, in the present case, as already held hereinabove, we are of the view that after taking into consideration all the circumstances including background of the criminal, his psychology, his social status, his mind set, we have given reasons why in this particular case death penalty is justified and, therefore, ratio of this judgment will not apply to the facts of the present case.
Further reliance has been placed by the learned Counsel appearing on behalf of the Appellant on the judgments in Mohinder Singh vs. State of Punjab (2013 CRI.L.J. 1559), State of Rajasthan vs. Devilal (2013 CRI.L.J. 1963), Sangeet and Anr. vs. State of Haryana (2013 CRI.L.J. 425), Manohar Lal alias Mannu and Another vs. State (NCT) of Delhi (2000) 2 SCC 92), Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra (2002) 2 SCC 35), Panchhi and Others vs. State of U.P. (1998) 7 SCC 177), Ronny alias Ronald James Alwaris, etc. vs. State of Maharashtra (AIR 1998 and SC 1251(1) and in Vashram Narshibhai Rajpara vs. State of Gujarat (2002) 9 SCC 168). We have perused the said judgments. We are unable to accept the submissions of the learned Counsel appearing on behalf of the Appellant/Accused that ratio of these judgments will apply to the facts of the present case since fact situations in all these aforesaid cases are different and, therefore, accepting the reasons given by the Apex Court in these cases, in our view, distinction can be made that they are not applicable to the facts of the present case.
101. We have already pointed that we have come to the conclusion that this is a rarest of rare cases after identification of aggravating and mitigating circumstances relating to both, crime and the criminal. The other thing which needs to be noted is that the matter was remanded by this Court to the Trial Court for giving an opportunity to the Accused to make his submissions on the point of sentence. The Trial Court, in our judgment, has given the said opportunity to the Accused and recorded his statement thrice to give him sufficient opportunity to make his submissions on sentence. He was also again re-examined by the panel of doctors who gave an opinion that he was absolutely normal and, therefore, there has been compliance of section 235(2) of the Code of Criminal Procedure by giving hearing to the Accused on the point of sentence.
102. This is an exceptional and rarest of rare cases where the crime is so cruel, diabolical and revolting so as to shock the collective conscience of the society. It is necessary to keep in mind the rule of proportionality for providing punishment according to the conduct of the Accused in committing crime and whether the Accused has become menace and threat to the harmonious and peaceful coexistence of the society. In rarest of rare cases where collective conscience of the community is so shocked, it expects the Court to inflict death penalty irrespective of its personal opinion as regards desirability or otherwise of retaining the death penalty.
103. This is not a case of a driver of a public vehicle committing a road accident driving a bus while on public duty but a case where, after hijacking the bus, he killed innocent people and damaged public property undaunted by all attempts made to dissuade him from his killing spree of hapless victims.
This is not a case where due to mechanical fault, he was unable to stop his vehicle.
The magnitude of his crime cannot be brushed aside on the ground of his false plea of insanity which he raised after the gruesome and gory incident was over.
The Trial Court, in our view, has rightly held that it was a false plea raised by him after realizing the consequences of his crime.
It cannot be accepted that an insane act cannot be committed by a sane mind.
It cannot be condoned on the fond hope that such a person may in the distant future will be reformed and claim right to live in a civilized society.
Such a dastardly and inhuman act cannot be condoned on the premise that when society inflicts insults and injuries on a person, it gives right to individuals to take revenge against the society and its innocent members either on account of assumed religious sanction or individual retribution of wrongs done to him.
If such acts are condoned by commutation of death penalty, it definitely would send wrong signals to the society that individuals can take law into their own hands and get away with it on some misplaced and misconceived notions of sympathy, particularly when constitutionally held valid capital punishment is approved by the legislature and the Apex Court has given its seal of approval to it.
We, therefore, have to do this unpleasant task of upholding the death penalty though we concur with some of the views expressed by the people who advocate abolition of death penalty from the statute book.
Yet, as long as death penalty remains on the statute book, we have to carry out this task of deliberating whether death penalty was justified in this case and we feel it was.
(XII) Final Order:
104. We, therefore, confirm the death sentence and direct that the Accused be hanged by neck till he is pronounced dead. We also confirm the other sentences which are imposed by the Trial Court. Criminal Appeal No.148 of 2014 filed by the Appellant/Accused is dismissed.