1. This appeal by the original accused questions the legality and validity of the order of conviction and sentence recorded against him by the learned Additional Sessions Judge, Nasik, in sessions Case No. 150 of 1979, the conviction being for an offence of murder punishable under S. 302. Penal Code, with a sentence of imprisonment for life imposed in that behalf.
2. The accused Balu Ganpat Koshire was married to Mira some time in 1973. Of the said marriage, the couple had a son Sandip who was four years' old at the time of the incident. The incident constituting of subject matter of the present prosecution occurred in the evening at about 7 O'clock on 26-9-1979 in the house of the accused. In the early part of the very day, the accused, his wife Mira and their son Sandip had returned from about a month's residence at Vani at the house of Hirabai, the sister of the accused. Just prior to the occurrence in question, wife Mira and son Sandip were sitting in their field near their house in the company of one Devki Dalvi and others, when the accused went there, took his wife Mira to their house with Sandip following them. Within a short time devki heard cries of Mira. She went to the house of the accused knocked at the door but there was no response. In the meanwhile, some young boys, who were going by the way, climbed the roof of the house at the request of devki and effected on entry and opened the door from inside. The accused went out with only a bloodstained pyjama. In the meanwhile, Nanyabai, mother of the accused, also came there. Devki and Nanyabai were shocked to find Mira and Sandip lying inside the house in a pool of blood with injuries on their persons. Dr. Pawar, a relation of the family, also came there. He conveyed the information telephonically to the police station. An offence of murder was registered against the accused. He was arrested and, after completion of investigation, charge-sheeted and committed to stand his trial before the Sessions Court, Nasik, for the offence of murder.
3. The accused admitted the incident but pleaded insanity and claimed protection of Section 84, Penal Code. The learned trial ledge held that the deaths of Mira and Sandip were homicidal. This fact and finding is not disputed in this appeal. It was further held that the accused had committed the murders. His plea of insanity was negatived and he was convicted under S. 302, Penal Code, and sentenced to suffer imprisonment for life. Hence this appeal.
4. In support of the appeal, we have heard Mr. C. A. Phadkar, learned counsel for the appellant-accused. The State is represented by the learned Public Prosecutor Mr. M. D. Gangakhedkar.
5. Learned counsel Mr. Phadkar took us through the record of the case including the evidence of the prosecution witnesses as also defence witnesses who in this case are as many as seven and contended that the impugned conviction cannot, for more than one reason, be sustained. The trial itself was, according to the learned counsel, not legal and valid. assuming the same to be valid, the accused even so was entitled to the protection of Section 84, Penal Code. His submission in this context was that more than sufficient reliable and cogent evidence had been placed before the Court on the basis whereof fair and reasonable inference would be that the accused had discharged the burden that lay on him thus creating a dent in the prosecution case which consequently cannot be said to have been established and proved beyond reasonable doubt. The learned Public Prosecutor Mr. M. D. Gangakhedkar sought to repel these contentions.
6. Now, on 18-1-1980 when the charge was framed against the accused, he was not represented by any advocate, not even a State advocate. Only subsequently, an advocate was appointed at State expense. Some days thereafter the accused engaged his own advocate who filed an application (Exhibit 5) under Section 325, Cr.P.C. inter alia to the effect that the accused was unable to give proper instructions in order to enable the advocate to defend him; that the accused appears to be of unsound mind; that he was not capable of making his defence; and that he was previously treated in a mental hospital and was being treated till his arrest; and it is necessary, therefore, that he should be examined and treated medically and mentally and further proceedings in the case should be postponed till he became capable of making his defence. The State had no objection to this examination. The trial Court directed that the accused be sent for medical examination. Pursuant thereto, he was admitted to the Mental Hospital at Thane and was kept under observation for more than three weeks. Certificate was then sent to the trial Court that the accused was 'un-certifiable' indicating that he cannot be said to be of unsound mind. On receipt of this certificate, the trial Court straightway resumed and concluded the trial.
7. Under Section 329, Cr.P.C., if at the trial of any person, it appears to the Court that such person is of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, '........ try the fact of such 'unsoundness and incapacity'. Record here does not indicate compliance with this mandatory provision. All that happened was that the trial Court did take a prima facie view in favour of the accused and did postpone the trial pending his medical examination. But after medical examination, the trial Court did not try the fact of the purported unsoundness and incapacity of the accused, did not record finding as to his mental condition and defending capacity and without fulfilling this initial obligation forthwith resumed and concluded the trial on the main charge itself. The resulting lacuna was not innocuous but vital. Under sub-section 92) of S. 329, Criminal P.C., the trial of the fact of unsoundness of mind and incapacity of the accused '...... shall be deemed to be a part of his trial before the Court'. Sequitur follows that the requisite trial under S. 329, Cr.P.C. was in this case not held at all. All that happened, if one may say so, was mere collection or receipt of evidence or material. But pursuant thereto no trial took place on the basic fact of unsoundness and incapacity of the accused. This vital lacuna would vitiate the trial. The doubt regarding the unsoundness and incapacity of the accused to defend himself at the main trial must per force continue to linger on, in the process rendering the validity of the further proceeding in the trial also doubtful. Taking this to its logical conclusion, the instant trial would be no trial in the eyes of law or, putting it differently, a void trial. It is, however, not necessary to go to that extent in the instant appeal because even on the assumption that the trial was valid, the accused here, on merits, established his claim to protection under Section 84, Penal Code, and consequently to an order of acquittal.
8. Coming then to the second aspect viz., the claim of the accused for protection under Section 84 Penal Code, we may in the first instance go through the relevant testimony not only of the prosecution witnesses but also witnesses examined by the defence and who were as many as seven in number. We may in this behalf take a chronological route regarding the condition of the accused from time to time so as to find out whether in terms of S. 84, Penal Code, it could or could not be said .... not beyond reasonable doubt but in all probability ...... that at the time of the offence in question the accused, by reason of unsoundness of mind, was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. Before proceeding further, it may be safely accepted as an undisputed fact emerging from the totality of evidence both on the side of the prosecution as also defence that the accused was a normal person and that his mental condition cannot be said to be that of a normal man. Indeed, even Dr. Vasant Pawar, a close relation of the accused and examined by the prosecution as one of its own witnesses, testifies to the fact of the accused not being a normal man and to the further circumstances that he was in fact being medically treated in that behalf. One has, therefore, to proceed on the undisputed aforesaid basis in this behalf. The evidence of Yeshwant Kale (D.W. 1), Murlidhar Shinde (D. W. 2) and Keshav Bhadane (D.W. 3), shows that the accused had once jumped from the Victoria Bridge (at Nasik) into the river below. A mere jump into a river may not be abnormal but the evidence of the aforesaid witnesses shows that the accused jumped from the Victoria Bridge into the river at about 11 O'clock in the night. This surely would be rather unusual if not abnormal. Their evidence further shows that members of the public collected, Ramesh, brother of the accused, was contacted, he came near the bridge, the accused was rescued from the river and taken by Ramesh to his house. This was an incident seen not only by the three witnesses examined by the defence but by many other members of the public. Indeed, evidence shows that police had also arrived.
9. Soon after this incident, the accused was taken to Bombay for medical consultation and treatment relating to his mental condition. At that time, Dr. Vasant Pawar, relation of the accused and prosecution witness in this case, was in Bombay. He testifies that the accused was brought to him at Bombay because there was mental disorder with him. He took the accused to an expert psychiatrist viz., Dr. Wahiya, who is yet another defence witness in this case. Dr. Wahiya examined the accused. The accused was admitted to a hospital and kept there as an indoor patient. He remained there for several weeks. He was also given shocks. This being soon after the virtual midnight occurrence at the Victoria Bridge, Nasik, it would be reasonable to infer that the behaviour of the accused was not normal and that his mental condition was also not normal. Indeed, as Dr. Vasant Pawar himself admits, he was brought to Bombay because of his mental disorder.
10. In this context one may now turn to the evidence of Dr. N. S. Wahiya (D.W. 6). There can be no dispute that he is an acknowledged expert in the field of psychiatry. He has been an M.D. of the Bombay University and a Fellow of the Royal College of Psychiatry, England. At the time of his evidence he had completed 32 years of practice in psychiatry. After his M. D. He had also gone to the United states for training and had stayed there for a period of one and a half years. For several years he was the Held of the Department of Psychiatry at the K.E.M. Hospital, Bombay. Indeed, even at the time of his evidence he was Professor Emiritus in G.S. Medical College, Bombay, and held an Honorary Post for postgraduate students. The credentials of this expert are thus beyond doubt. He testifies that the accused had been brought to him, that he had examined the accused, that the accused had been admitted to a hospital, that he was being treated for his mental disorder, that he was given electric shocks and that he was also administered anti-psychotic drugs. This was in the year 1974. He further testifies that the accused was a psychiatric patient, that electric shocks are given in the treatment of schizophrenia and other mental sickness and when drugs do not react. This treatment has to control psychotio. He further states that exact causes of Schizophrenia are not yet known but here are very many causes in that behalf. He also states that there is no fixed time for this disease in the life of a man. It can come in early stages of life or even later. He also states that by mere appearance one cannot say if any individual is schizophrenic or not. There are various symptoms and nothing is rigid about it. Suicidal or homicidal tendency or attempts may be present in schizophrenic patients. One may recall the midnight jump of the accused from the Victoria Bridge. The patient appears normal but may become aggressive at any moment. He expressed his approval of the observation of Keith Simpson in his book 'Forensic Medicines' to the effect that,'Schizophrenia (dementia praecox) is the commonest of all psychoses to be associated with homicidal assaults'. Dr. Wahiya also expressed his agreement with the view of Robert A. Woodroff and two others to the effect that 'A common fear about deluded schizophrenic patients is that they are likely to act on their delusions and commit crime'. Dr. Wahiya then testifies that the patient may improve and may also relapse and that it is difficult to say if the subsequent attacks are more acute. According to him, as the causes are not known, there is no final drug or remedy. Significantly enough, we do not find any cross-examination worth the name of this expert in the filed. He states that discharge of the accused from the hospital may indicate improvement. This, however, does not help the prosecution firstly because improvement does not mean cure and secondly because Dr. Wahiya categorically states more than once that a patient may improve and may also relapse. In this context further evidence in this case establishes that the patient here viz., the accused had in fact relapsed into the same mental condition and mental disorder as before and perhaps, indeed, in a mere acute form. This possibility also, according to Dr. Wahiya, cannot be ruled out.
11. We then have the testimony of yet another expert in the field viz., Dr. S. M. Sule (D.W. 7). He is an M.D. (Psychiatrist) of the University of Bombay. He is a member of the Indian Psychiatric Society. He also holds a Fellowship in Psychological Medicines. He has been practising as a psychiatrist at Nasik. He examined the accused in June, 1977. He was referred to him by Dr. Vasant Pawar himself (P.W. 2) in this case. History of the patient viz., the accused was to the effect that he behaved suspiciously; that he was psychiatric and rowdy; that he had paranoid delusions; that he had attacks that he had jumped into the river; and that he was previously treated at Bombay both in drugs as also electric convulsive treatment. He then states that the patient was better for some time but relapsed after some months. He gave drugs and electric convulsive treatment to the patient but there was no follow up afterwards and the treatment was stopped abruptly. His own diagnosis was that the patient was suffering from paranoid schizophrenia. His testimony shows that the patient had not recovered when he abruptly stopped treatment. His evidence further shows that there was possibility of relapse. Even here, we do not find any serious cross-examination of Dr. Sule. Merely that the symptoms were not noted in the history paper and that after 1977 he did not have occasion to see the accused. Thus, as at this stage, one finds that the accused was a mental patient for the last several years till at least the year 1977 when he was under treatment of Dr. Sule and that he was treated for that purpose not only by an expert Dr. Wahiya in Bombay but also subsequently by another expert Dr. Sule in Nasik.
12. Apart from medical testimony, we have in this case the testimony of yet another important defence witness viz., Hirabai Gulabrao Khune, the sister of the accused. Here evidence assumes important because it relates to a period of one month immediately before the date of the occurrence and during which period the accused was sent to her residence at Vani presumably for a change and with a hope of a turn for the better in his mental condition. Hirabai herself is a school teacher at Vani. She categorically states that the accused was sent to her because he was a lunatic. She then relates several instances showing the mental disorder of the accused and his inability to know what was right and what was wrong or to distinguish the proper from the improper. The accused was required to be sent to answer call of nature; he was not brushing his teeth; Hirabai herself had to at times clean his teeth; even while going for bath, the accused used to remain in the bathroom without doing anything; while wearing clothes, he put his pyjama far below his under-pant; he was urinating in the house and sometimes in the presence of women; his speech was irrelevant; he used to pick up and eat anything found on the ground; he was unable to read anything; and there was hardly anything that remained to be done to improve him. She then states that medicines also did not improve him. She then states that his wife Mira alone could undergo such hardships but the devoted Mira nevertheless hoped that one day he will improve and that she did not like others talking about her husband. Hirabai then states that after a stay of one month or so, she personally brought back the accused along with his wife and child to his residence at Nasik, for she was not sure whether he could go on his own because he was a lunatic. It is significant that most of the important incidents as also the evidence in the main of this witness relating to the behaviour and conduct of the accused has gone virtually unchallenged in her cross-examination. Indeed, as in the case of other defence witnesses so also in the case of Hirabai (D.W. 5), there is no cross-examination worth the name. Inference, therefore, is irresistible that during the period immediately prior to the occurrence in question, which is the subject matter of the instance prosecution, the accused was found behaving in the most abnormal manner and in a manner strongly indicating an abnormal mental state and condition. It is obvious from the testimony of Hirabai that the accused was unable to distinguish the proper from the improper or unable to know what is right and what is wrong. Urinating in front of women, picking up anything from the ground and eating the same, not even able to brush his own teeth and laving that task to his sister, going to the bathroom apparently for a bath but without taking both remaining there for a long time, wearing clothes in a most peculiar manner viz., pyjama below underpant, are all indications, particularly in the case of a married man like the accused over thirty years at the relevant time, of an unusual mental set up and inability to behave like a normal man with a normal mind.
13. Though it is true that Hirabai is a sister and thus a close relation of the accused, in a case such as this that can be no ground for discrediting her testimony. Indeed, in a matter such as this, it is the testimony of relations that is of considerable assistance in reaching a fair and just finding one way or the other, because it is relations who, by virtue of their close and frequent contact with the accused, are in a much better position to give evidence relating to the mental condition of the accused. See in this context Ratanlal v. State of Madhya Pradesh : 1971CriLJ654 , wherein it is observed (at page 657 of Cri LJ) :-
'..... We hold that the appellant has discharged the burden. There is no reason why the evidence of Shyam Lal, D.W. 1, and than Singh, D.W. 2, should not be believed. It is true that they are relation of the appellant, but it is the relations who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning of S. 84, I.P.C.'
Thus, considering the evidence of Hirabai along with the testimony of experts Dr. Wahiya and Dr. Sule, it would be reasonable to hold that the accused was a case of a mental patient and one with an unsound mind, incapable of any improvement, undergoing one relapse after another and of whom hopes had virtually been given up. Even the prosecution witness Devki admitted that the accused was sent to his sister Hirabai's place because he was mentally deranged and with a hope that he may improve. The behaviour of the accused at the time of the occurrence and soon thereafter further corroborates his mental condition. Evidence shows that while his wife and son were in the company of Devki and others in the field located near their house, the accused went there, brought back his wife with son following to his house and entering the home brutally killed both of them. Thereafter when the door was opened he just walked out with only a pyjama on his person, when to a field and sat there in a pensive mood. Yet another indication of his mental condition emerges from the admitted fact (vide evidence of the police officer P.W. 12) that soon after his arrest, which was soon after the occurrence, he was sent for medical examination. Unfortunately, the prosecution has not led evidence of the doctor who then examined the accused. However, the very fact that the accused was immediately sent for medical examination is yet one more indication that even at that stage, which was soon after the occurrence, he was suspected to be of an unsound mind.
14. Mr. Phadkar, learned counsel for the accused, emphasised one more circumstance in favour of the accused. He took us through the evidence of Narayan Laxman Telge (P.W. 8), the learned Judicial Magistrate, who recorded the confession of the accused. The accused was produced before the learned Magistrate on 27-9-1979 the very next day of the occurrence. The testimony of the learned Magistrate, however, shows that he adjourned the recording of confession for as many as seven times. On 27-9-1979 the matter was adjourned to 7-10-1979, then to 11-10-1079, then to 15-10-1979, then to 22-10-1979, then to 29-10-1979 and then again to 3-11-1979. Reason given by the learned Magistrate for this extensive delay viz., he was busy with administrative work, hardly justifies the gross delay. Recording of confession is an important matter and can in a given case constitute a very important circumstance in a trial, nay, the very foundation of a conviction. The learned Magistrate does not appear to have realised the seriousness and importance. Besides, we are not satisfied that he could be so extremely busy or pre-occupied with administrative work that he had to postpone this important function from time to time and for as nearly as seven times. Submission of the learned counsel Mr. Phadkar that these several postponements were not because of the purported administrative work but because the learned Magistrate was not satisfied that the accused was in a fit state of mind to make confession, cannot be said to be unfounded. In the entire context, the considerable lapse and delay in the aforesaid behalf becomes significant and constitutes yet one more circumstances corroborating the other evidence in this case on the mental condition of the accused.
15. Cumulative effect of all this evidence of experts and laymen and both direct and circumstantial together with the facts and circumstances - which are not slender or insignificant but substantial - emerging therefrom takes the case and defence of the accused nearer home under Section 84, Penal Code. Though in terms of this section, it is for the accused to show that by reason of unsoundness of mind he was incapable of knowing the nature of the act or incapable of knowing the nature of the act or incapable of knowing that what he was doing was wrong or contrary to law, the Court, while considering this defence, would have to look at and consider the totality of the emerging situation and position in the light of facts and circumstances relating to the mental condition of the accused preceding the occurrence, at about the time of the occurrence as also after the occurrence. As observed by the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat : 1964CriLJ472 :
'When a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84, Penal Code, can only be established from the circumstances which preceded, attended and followed the crime'.
In yet another ruling of the Supreme Court in Jai Lal v. Delhi Administration, : 1969CriLJ259 , it is observed :
'To establish that the acts done are not offences under S. 84, it must be proved clearly that at the time of the commission of the act the appellant by reason of unsoundness of mind was incapable of knowing that the acts were either morally wrong or contrary to law. The question is whether the appellant was suffering from such incapacity at the time of the commission of the acts. On this question, the state of his mind before and after the crucial time is relevant'.
And further still :
'If a person 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 he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled to an acquittal'.
16. Though the learned Public Prosecutor Mr. Gangakhedkar is right in contending that there is a presumption that the accused was not insane, it is well to remember that it is a rebuttable presumption. And it is, therefore, open to the accused to rebut it by placing before the Court all the relevant evidence, oral, documentary and/or circumstantial. The accused here has done that in a very good measure in this case. Relevant evidence is led not only of his relations but also of disinterested persons in the city as also medical evidence including evidence of experts in the field. That apart, the testimony of the prosecution witnesses also points in the same direction. Even Dr. Vasant Pawar, who is the complainant in the instant case, testifies to the mental disorder of the accused. Indeed, the mental condition of the accused is writ large on the record of this case. It is, of course, true that it is for the accused to discharge the burden that lies on him for rebutting the presumption of sanity and bringing his case within the ambit of Section 84, Penal Code. Equally settled, however, is the legal position that this burden or onus on the accused is not as heavy as that on the prosecution but equivalent to that which lies on a party in a civil proceeding. As authoritatively laid down by the Supreme Court in 's case : 1964CriLJ472 supra) :
'The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions : (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84, I.P.C.; 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 means rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged'.
17. All in all, therefore, and all things considered, the accused here must be held to have more than satisfactorily rebutted the initial presumption against his insanity and to have discharged the onus to the extent it lay on him. The facts and circumstances, the evidence of the prosecution witnesses, the testimony of the defence witnesses, the testimony of the experts in the field, the failure of the prosecution to examine the doctor to whom the accused was sent immediately after the occurrence in question and the uninspiring nature of the judicial confession which ultimately came into existence after as many as seven adjournments in the matter thereof, considered together and cumulatively, brings the instant case within the four-corners of Section 84, Penal Code. In any event, the totality of evidence before the Court and the cogent facts and circumstances emerging therefrom raise, qua the charge against the accused, more than reasonable doubt in the mind of the Court. The prosecution must hence be held to have failed to bring home to the accused the impugned charge beyond reasonable doubt. The general burden of proof that 'always rests on the prosecution from the beginning to the end of the trial' has not stood discharged. The inevitable end result would, therefore, be an order of acquittal. The impugned conviction is, therefore, liable to be set aside and replaced by an order of acquittal in favour of the accused. However, in the context of section 334, Cr.P.C., a finding is here recorded to the effect that the accused had, in fact, committed the act of resulting in the death of his wife Mira and his son Sandip. That this is so is admitted by the accused in his examination under S. 313 of Cr.P.C. His only defence was based on Sec. 84, Penal Code and, as seen, he has succeeded in getting protection thereof.
18. In the result, this appeal succeeds and is allowed. The impugned order of conviction and sentence recorded against the accused by the learned Additional Sessions Judge, Nasik, in Sessions Case No. 150 of 1979 is set aside. And the accused is acquitted of the charge levelled against him.
19. This, however, is not a case where the accused can be set free but one wherein an order under Section 335, Cr.P.C. requires to be made. Mr. Phadkar, learned counsel for the accused, has filed in this Court an affidavit of one Rambhau Ganpat Koshire (who is present in Court today), the eldest brother of the accused. In the said affidavit, this Court is requested to pass an order directing the accused to be delivered into his i.e. Rambhau's custody under the provisions of Section 335(1)(a) of Cr.P.C. The said affidavit contains an undertaking to this Court - and which undertaking this Court accepts - that the accused, if so delivered, shall be properly taken care of and prevented from doing injury to himself or to any other person and that the accused shall be produced for inspection of such officer and at such times and places as the State Government may direct. In his affidavit Rambhau has also expressed his willingness to give, if so necessary, security to the satisfaction of this Court for the aforesaid purpose. In our view, this is a fit case where instead of otherwise detaining the accused in safe custody as per Section 335(1)(a), Cr.P.C. he should be delivered to his eldest brother Rambhau Ganpat Koshire who has filed an affidavit complying with the terms and conditions of Section 335(3) of the said Code. Hence order :
The accused be delivered over to Rambhau Ganpat Koshire of Koshire House, Malaviya Chowk, Panchavati, Nasik, on his (the said Rambhau Ganpat Koshire) giving in favour of the Sessions Court, Nasik, his personal bond in the sum of Rs. 5,000/- to the effect that the accused will be properly taken care of and will be prevented from doing injury to himself or to any other person and that the accused will be produced for the inspection of such officer and at such times and places as the State Government may direct.
20. The office shall make a report to the State Government in terms of S. 335(1), Cr.P.C. It shall also forward to the State Government a copy of this judgment.
21. Order accordingly.