1. Machi Parvaiah, the appellant herein, was tried in Sessions Case No. 10/1983 on the file of the Additional Sessions Judge, Nizamabad on the charge that he committed the murder of his mother Bhumavva (hereinafter referred to as the 'deceased'). The learned Sessions Judge found the appellant guilty of the offence and convicted him under Section 302 I. P. C., and sentenced him to imprisonment for life.
2. The facts urged by the prosecution in support of its case against the accused-appellant lie in a narrow compass. On 23-9-1982 at about 2 p. m., the accused returned from outside to his hut with an axe in his hand. His sister, Agavva, and the deceased, his mother, were in the kitchen speaking to each other. The accused gave a beedi to the deceased to light it and when the deceased bent into the oven to light the beedi, the accused cut the deceased's neck with his axe, as a result of which the deceased died instantaneously. Indeed, we are relieved of the need to examine any evidence as the learned Counsel appearing for the accused, Sri Bhagiratha Rao, fairly conceded the above act of the accused which caused the death of the deceased. Learned Counsel, however, put up the plea that the act committed by the accused cannot be regarded as an offence under the Penal Code as it fell under Section 84 of the Penal Code. According to the learned Counsel, the accused was of unsound mind and suffering from a fit of insanity and imbalance of mind and therefore he committed the act. Learned Counsel relied on the following circumstances in support of his plea of insanity.
(a) There is absolutely no motive for the accused to kill his mother. The evidence of P.W. 2 (the daughter of the deceased and the accused's sister) and also of P.W. 3 (husband of P.W. 2) clearly showed that the accused and the deceased were on cordial terms and never quarrelled nor were there any disputes between the two.
(b) After committing the act, the accused did not abscond from the scene of offence and did not also try to conceal himself or the weapon with which he killed the deceased.
(c) The accused remained at the scene of offence and started weeping along with his sister that his mother died. The evidence of P Ws. 2 and 3 testified to this fact.
(d) P.Ws. 2 and 3 stated before the investigating officers and also before the Magistrate who recorded the statements under Section 164 Cr. P. C. that the accused was under the influence of evil spirits and behaving disorderly since two years before the date of offence. Before the Judicial First Class Magistrate, Kamareddy, P.W. 2 stated that the deceased was behaving as if someone practised black magic on him and that the accused was shown to some 'magicians' but that there was no relief. P.W. 3, also stated that since two years the accused was under the influence of witchcraft and behaving disorderly. Although the accused got treatment at Yellareddy and other places, it was in vain.
(e) The act of the accused in killing the mother whom he had regarded with affection and without any motive speaks for itself in the sense that the accused acted in an extremely unusual manner and his extraordinary conduct and behaviour in committing the act and in sitting at the scene of offence weeping indicated that the act was committed by the accused at a time when he was of unsound mind.
3. The learned Public Prosecutor resisted the above plea of the accused. It is contended that just because there was no motive and the accused did not abscond from the scene of offence, it does not automatically follow that the accused was of unsound mind when he committed the act. Learned Public Prosecutor pointed out that there was no evidence to show that the conduct and behaviour of the accused preceding, attending and following the commission of the offence supported the claim that the accused was incapable of knowing the nature of his act by reason of unsoundness of mind and he did not know what he was doing was either wrong or contrary to law.
4. The learned Counsel for the convicted accused and the learned Public Prosecutor referred to a number of cases supporting their respective pleas. We shall briefly refer to them a little later.
5. In order to clear the ground, we may straightway mention that the learned Public Prosecutor did not fairly dispute the circumstances pointed out by the learned Counsel for the convicted accused. It is admitted that the prosecution could not find ; any motive. It is also admitted that the accused | did not try to abscond or conceal himself or the weapon with which he committed the act of killing the deceased and the accused also remained at the scene of offence weeping along with his sister and other relations until the police patel arrived. Learned Public Prdsecutor, however, points out that the alleged anterior history of the accused being under black magic should be disregarded for two reasons. It is claimed that the statements made by P.Ws. 2 and 3 before the investigating officers and the Judicial First Class Magistrate, Kamareddy pointing out to the accused undergoing treatment for black magic and witchcraft in the past and the accused demonstrating disorderly behaviour at times were denied in cross-examination during the course of trial. Learned Public Prosecutor, therefore, contended that this Court should not take into consideration the statements made by P.Ws/2 and 3. We must straightway reject this contention, Exs. D-l to D-6 undoubtedly supporting the plea that P.Ws. 2 and 3 stated before the investigating authorities and the Judicial First Class Magistrate, Kamareddy that the accused was under the' influence of witchcraft for about two years and behaving disorderly. It was stated before the Judicial First Class Magistrate that the accused was behaving disorderly on account of magic practised by somebody. It also showed that the accused was under treatment at Yellareddy and other places, but without any result. It is true, as the learned Public Prosecutor pointed out, that P.Ws. 2 and 3 in cross-examination denied having made the above statements before the investigating authorities and the Judicial First Class Magistrate, Kamareddy, On the facts of the case, we are inclined to accept the submission of the learned Counsel for the convicted accused that the denial of P.Ws. 2 and 3 in cross-examination of their having made the above statements before the investigating authorities and the Magistrate, Kamareddy was due to pressure brought upon them by the prosecution, so that no antecedent history of the accused being under the spell of black magic could come up for consideration. It is true, no evidence has been let in by the accused to support that prior to the commission of the offence he was suffering from mental disorders periodically, that he was under the treatment and that the treatment did not yield results. We do not, however, see any grounds to disbelieve the statements made by P.Ws. 2 and 3, the sister and brother-in-law of the accused and the daughter and the son-in-law of the deceased respectively to the effect that the accused was suffering from a kind of mental disorder for which he received treatment without result. On these facts, we are unable to reject the submission of the learned Counsel for the convicted accused that there was evidence indicating that prior to the commission of the alleged offence by the accused he was suffering from mental disorders periodically.
6. We may refer to the decision of the Supreme Court in Dahyabhai v. State of Gujarat : 1964CriLJ472 . The parameters within which a plea of legal insanity could be accepted were examined by the Supreme Court in this case. It was observed that when a plea of legal insanity is set up, the Court has to consider whether at the time of the commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing of nature of the act or that he was doing what was either wrong or contrary to law, in order to seek protection of Section 84 I. P. C. 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 I. P. C., can only be established from the circumstances which preceded, attended and followed the crime. The Supreme Court further observed that there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the 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. The Supreme Court observed that even if the accused was not able to establish conclusively that he was insane at the time when 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 (sic) prosecution was not discharged.
7. We had occasion to consider in some detail the question regarding the application of Section 84 I.P.C. in a recent case where the plea of insanity was raised, vide our judgment in Harold Correa v. State of A.P. Crl. Appeal No. 123 of 1983, dt. 7-3-1985. While dealing with the matter we have referred in that case to the decisions of the Kerala High Court in Unniri Kanan v. State : AIR1960Ker24 , the Delhi High Court in Mst. Shanti Devi v. State : AIR1968Delhi177 , the judgment of a Division Bench of this Court in Dharmadas v. State of A. P. (1985) 1 Andh LT 16 and the Karnataka High Court in Sanna Eranna v. State of Karnataka 1983 Cri LJ 619. We do not consider it necessary to refer to these cases once again. We would, however, reiterate that the decisions in the above cases do support the proposition that in a case where the conduct of the accused in committing an act demonstrates an abnormality, the prosecution should place before the Court some evidence to indicate that the accused was in a proper state of mind at the time when he committed the alleged offence. Even if no evidence is forthcoming regarding the conduct and behaviour of the accused preceding, attending and following the commission of the offence, the Court can look into the acts which serve to ascertain whether they provide intrinsically the chief evidence of insanity. In the present case, surely the conduct and behaviour of the accused attending the commission of the offence was extraordinary. Without any motive or provocation whatsoever, he cut his mother's neck with an axe. Evidence led by the prosecution indicated that the accused was on very cordial terms with his mother and there were no quarrels or disputes. After cutting his mother's neck the accused put down the axe, sat at the scene of offence and started weeping for his deceased-mother along with his sister and other relations. The accused did not make any attempt to flee from the scene of offence or conceal himself or conceal the weapon. The prosecution should have considered this extraordinary behaviour on the part of the accused as meriting an investigation into the state of the accused's mind at the time when he committed the alleged offence. The obligation of the prosecution to investigate into this matter was all the greater in view of the statements made by P.Ws. 2 and 3, the sister and brother-in-law of the accused, that for the past two years the accused was under the influence of some black magic and underwent treatment without result. We are constrained to observe that the investigating authorities, instead of acting fairly and sending the accused to an expert for medical evidence regarding his state of mind, endeavoured to give a lie to the statements made by P.Ws. 2 and 3 regarding the accused's previous insanity, by requiring these witnesses to retract from their statements made earlier before the investigating authorities and the Judicial First Class Magistrate, Kamareddy. In a case where the accused was taken into custody immediately after the commission of the offence, there is no way the accused can establish his state of mind. Fairness in investigation requires that the investigating 'officials should probe into this aspect and subject the accused to medical examination at least to ensure that the accused was in fact a person of ordinary state of mind. If that is done, it necessarily rules out the possibility of the accused having committed the acts of violence attributed to him on account of any mental disease or lunacy. The failure to subject the accused to such medical examination immediately and to place before the court all the evidence that could be available may have a serious consequence on the prosecution case when such plea of insanity is raised by the accused at the trial. The failure on the part of the prosecution to collect the evidence and place before the Court, on the mental aspect of the accused, creates a serious infirmity in the case of the prosecution and raises a doubt whether the act or acts of violence were committed with the requisite intention of committing a particular offence. Consequently, the benefit of doubt will have 10 be given to accused. To the same effect is the view expressed by the Karnataka High Court in Sanna Eranna v. State of Karnataka 1983 Cri LJ 619 (supra).
8. Learned Public Prosecutor invited our attention to the decision of the Supreme Court in Sheralli W. Mohammed v. State of Maharashtra : 1972CriLJ1523 arid the decision of the Orissa High Court in Mitu Khadia v. State of Orissa 1983 Cri LJ 1385, in support of his plea that the mere fact, that the mere absence of proof of motive could not by itself show that a person was insane. Learned Public Prosecutor also pointed out that the fact that the accused made no attempt to run away from the scene of offence would not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.
We have no doubt about the correctness of these propositions. The total absence of motive, while it is not conclusive by itself, is a factor to be taken into consideration along with the other circumstances while judging a plea of insanity. The prosecution must prove that the accused person had committed the offence with the requisite mens rea. Unless this burden is discharged by the prosecution it cannot ask for the conviction of the accused. In judging the plea of insanity, while no single circumstance may be conclusive, the cumulative effect of all the circumstances will have to be taken into account. In Sheralli W. Mohmed's case (1972 Cri LJ 1523) (SC) (supra) on which the learned Public Prosecutor relied, the prosecution led medical evidence to show that the accused was in normal condition and the evidence of the doctor had not been challenged in cross-examination by the defence. In Mitu Khadia's case (1983 Cri LJ 1385) (Orissa) relied on by the Public Prosecutor, the High Court has taken into account the evidence adduced by both sides and came to the conclusion that the plea of insanity was established. Learned Public Prosecutor also relied on the judgment of the Bombay High Court in Kesheo Rao v. State of Maharashtra 1979 Cri LJ 403. We find that in that case there was evidence led by the prosecution to show that the accused had a motive. Taking into consideration that aspect, the Bombay High Court rejected the plea of insanity. This case does not, therefore, advance the case of the prosecution any further.
9. Learned Public Prosecutor has. also invited our attention to the decision of the Supreme Court in Jai Lai v. Delhi Administration : 1969CriLJ259 to support the proposition that it is for the accused and accused alone to establish that at the time of commission of the offence he was of unsound mind. Learned Public Prosecutor contended that for this purpose, the accused must show by relevant evidence that he was suffering from insanity either before the commission of the offence or after the commission of the offence and in a case where no such evidence exists it will not be permissible for the Court to assume that at the time of committing the offence the accused was of unsound mind and was incapable of knowing that his acts were either morally wrong or contrary to law. We are afraid, the decision of the Supreme Court, relied on by the learned Public Prosecutor, does not support the wide proposition that in order to accept a plea of insanity, evidence must necessarily exist of the accused being of unsound mind either before or after the commission of the offence. Such evidence is relevant to consider the question whether the accused was of unsound mind at the crucial time when he committed the offence. In the case before the Supreme Court, there was positive evidence that even at the moment of his greatest excitement the accused could distinguish between right and wrong. Nothing abnormal was noticed in the behaviour of the accused. Based on that positive evidence, the Supreme Court declined to admit the plea of insanity. The facts in the Supreme Court case are totally distinguishable.
10. We have earlier pointed out that there was evidence to show that the accused in the present case was under the influence of black magic and was behaving in a disorderly manner indicating unsound mind. The statements of P. Ws. 2 and 3 before the Investigating Officers and the Judicial First Class Magistrate, Kamareddy, support this aspect of mental disorder suffered by the accused. He was treated for (he mental disorder but without success. The denial by P. Ws. 2 and 3, in their evidence, of the statements before the Investigating Officers and the Judicial First Class Magistrate. Kamareddy, is, in our opinion, not voluntary but inspired. The evidence of P.Ws. 1, 2, and 3 clearly pointed out that the relations between the accused and the deceased were absolutely cordial. There was total absence of motive. The behaviour of the accused in remaining at the scene of offence without concealing himself and in weeping for the deceased mother along with the relations, is a pointer to the state of mind of the accused at the time of committing the offence. The accused was taken into custody immediately and the Investigating Officials did not subject him to medical examination to ascertain his state of mind. Being in the custody of the police, the accused had no opportunity to establish his state of mind immediately after the commission of the offence.
11. On the above evidence placed before us, we are not certain that the act of the accused on 23-9-82 in inflicting a cut on the neck of his deceased mother with an axe was not the result of an unsound and imbalanced mind possessed by the accused at the time of committing the act. On the facts we are unable to exclude from our minds the doubt that the accused acted in a fit of insanity and on an irresistible impulse and inflicted the injury on his mother's neck with his axe resulting in her death without being aware of the nature of his acts and the consequences thereof. We give the benefit of doubt to the accused and set aside the conviction of the accused by the learned Additional Sessions Judge, Nizamabad under Section 302 I. P. C. and the sentence of imprisonment for life awarded. We, however, record the finding that the accused committed the act alleged against him, namely, causing the death of his mother for which he was convicted under Section 302 I.P.C. had it not been for the application of Section 84 I. P. C. we would have regarded the act committed by the accused as offence under the Penal Code and confirmed the sentence imposed on him by the learned Additional Sessions Judge. Order regarding the detention of the accused in safe custody as envisaged by Section 335(1) of the Criminal P. C. shall be passed after hearing the learned Counsel for the accused. We, therefore, defer for the present passing orders relating to the detention in safe custody of the accused.
12. The appeal is allowed.