REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL    NO.814 OF 2017

DEVIDAS LOKA RATHOD ....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant assails his conviction under Section 302

and 324 of the Indian Penal Code (IPC), rejecting his defence

that he was of unsound mind.

2. In the  morning  of  26.09.2006, the  appellant suddenly

picked up a sickle from the shop floor of the iron smith and

attempted to assault Gulab Pawar (P.W.11), but which injured

Santosh  Jadhav (P.W.5) on the jaw  and cheek  and  gave  a

further blow on his shoulder.   The same day, he later

assaulted  Ulhas  Rathor (P.W.3) on  his  back  and  neck  and

rained blows on the back and stomach of the deceased Harish

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Chandra Chauhan,  when the  latter tried  to intervene.  The

appellant then tried to flee, throwing the sickle enroute, when

he was apprehended by the villagers and handed over to the

police.

3. The Additional Sessions Judge, Akola rejected the

defence plea for unsoundness of mind, citing insufficient

evidence relying on the evidence of Dr. Sagar Srikant

Chiddalwar (C.W.1) that the appellant was not mentally sick

and fit to face trial.  The subsequent conduct of the appellant

while in custody, his demeanour during the trial, were further

relied upon to conclude that the appellant was conscious of

his  wrongful acts  which  were deliberate in  nature, evident

from the repeated assaults and running away from the place of

occurrence after throwing the sickle.  The High Court declined

to interfere with the conviction.

4.  Ms.  Aparna Jha appearing on  behalf of the appellant

urged that in absence of any  mens rea,  conviction under

Section 302 I.P.C. was unsustainable, relying upon

Dahyabhai  Chhaganbhai  Thakker vs.  State  of  Gujarat,

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1964 (7) SCR 361.  It was next contended that the evidence of

Mankarna Chavan (D.W.1) and Gograbai Rathod (D.W.2), with

regard to the unsoundness of mind of the appellant has not

been properly appreciated and wrongly rejected as insufficient.

The appellant belonged to a very poor family and they could

not be expected to keep his medical records and prescriptions

meticulously. The defence  witnesses had deposed that the

appellant  was  under the treatment of  Dr.  Kelkar at  Akola.

There  existed sufficient  evidence for  a  plausible  defence for

unsoundness of  mind under Section 84 of the Indian Penal

Code read with Section 105 of the Evidence Act on a

preponderance of the probability.  The prosecution  failed to

lead any evidence in rebuttal, for which reliance was placed on

Elavarasan vs. State represented by Inspector of Police,

2011 (7) SCC 110.   The conviction was, therefore, unjustified

and the appellant was entitled to acquittal.

5. Learned counsel for the State, Shri Katneshwarkar,

opposing the appeal, submitted that the appellant had failed

to prima facie establish a case for unsoundness of mind on

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probability.  The trial judge had taken adequate precautions in

calling  for  medical reports from time to  time and satisfying

himself with regard to the ability of  the appellant to defend

himself quite apart from also noticing his demeanour in court.

The  conduct of the  appellant in  making repeated  assaults,

running away from the place of occurrence, throwing the

sickle on the way, were all sufficient to establish the

commission of the offence knowingly by him, incompatible

with the defence of unsoundness of mind.  

6. We have considered the respective submissions.

Normally, this Court is reluctant to interfere with concurrent

findings of facts by two courts, under Article 136 of the

Constitution,  as  also  observed  in  Deepak Kumar vs.  Ravi

Virmani and another, 2002 (2) SCC 737.  But this does not

preclude it in appropriate cases to reappraise evidence in the

interest of justice, if it entertains any doubt about the nature

of evidence  and its  appreciation  or  non­appreciation.  There

can be no hard and fast rule in this regard, and much will

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depend on the concept of justice in the facts of a case, coupled

with the nature of acceptable evidence on record.  

7. The prosecution, including the injured witnesses,

undoubtedly denied that the appellant was of unsound mind.

But the evidence of police Sub­Inspector Chandusingh

Mohansingh Chavan (P.W.14),  coupled with the reference to

the medical reports of the appellant, persuaded us to examine

the  original records  of the trial  court  ourselves in  order to

satisfy us that there had been proper and complete

appreciation  of  all evidence  and  that the findings  were  not

perverse or obviated by non­consideration of relevant

materials, so that justice may ultimately prevail.

8. That the appellant was a very poor person stands

established by P.W. 14, and which consequently necessitated

legal assistance to him for his defence by the District Legal

Services Authority, Akola as also before the High Court and

also before this court by the legal aid cell.  

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9. P.W.14, in his examination­in­chief, stated that the

appellant was caught immediately after he made the assault

on 26.09.2006 and brought to the police station.  The FIR was

registered the same day. But the appellant was taken in

custody only on 28.09.2006 because he was not keeping well

and had been admitted in the hospital.  The information of his

arrest was not given to his sister or mother, but only to his

friend Nagorao Baghe, who has not been examined. In view of

the previous history of insanity of the appellant as revealed, it

was the duty of an honest investigator to subject the accused

to a medical examination immediately and place the evidence

before the court and if this is not done, it creates a serious

infirmity in the prosecution case and the benefit of doubt has

to be given to the accused, as observed in Bapu vs. State of

Rajasthan,  (2007) 8 SCC 66.   The admitted facts in the

present case strongly persuades us to believe that the

prosecution has deliberately withheld relevant evidence with

regard to the nature of the appellant’s  mental illness, his

mental condition at the time of assault, requiring

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hospitalization immediately after the assault and hindering his

arrest, the diagnosis and treatment, the evidence of the

treating doctor, all of which necessarily casts a doubt on the

credibility of the prosecution evidence raising more than

reasonable doubts about the mental condition of the

appellant.  Unfortunately, both the trial  court and the High

Court, have completely failed to consider and discuss this very

important lacuna in the prosecution case, decisively crucial for

determination or abjurement of the guilt of the appellant.  

10. The law undoubtedly presumes that every person

committing an offence is sane and liable for his acts, though in

specified circumstances it may be rebuttable.  The doctrine of

burden  of  proof in the context  of the  plea  of insanity  was

stated as  follows in  Dahyabhai Chhaganbhai Thakkar v.

State of Gujarat, (1964) 7 SCR 361 :

“(1)  The prosecution must prove beyond reasonable doubt that the  accused had committed  the  offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.  (2) There is a rebuttable presumption that the accused was not insane, when he committed the

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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.”

11.  Section 84 of the IPC carves out an exception, that an act

will not be an offence, if done by a person, who at the time of

doing the same, by reason of unsoundness of mind, is

incapable of knowing the nature of the act, or what he is doing

is either wrong or contrary to law. But this onus on the

accused,  under  Section  105  of the  Evidence  Act is not as

stringent as on the prosecution to be established beyond all

reasonable  doubts.  The  accused  has  only to establish  his

defence on a preponderance of probability, as observed in

Surendra Mishra vs. State of Jharkhand,  (2011) 11 SCC

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495, after  which the onus shall  shift  on the prosecution to

establish the inapplicability of  the exception.   But,  it is not

every and any plea of unsoundness of mind that will suffice.

The standard of test to be applied shall be of legal insanity and

not medical insanity, as observed in State of Rajasthan vs.

Shera Ram, (2012) 1 SCC 602, as follows :

“19. ……..Once,  a person  is  found to be suffering from mental  disorder  or  mental  deficiency,  which takes within its ambit hallucinations, dementia, loss of memory and self­control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.”

12. The crucial point of time for considering the defence plea

of unsoundness of mind has to be with regard to the mental

state of the accused at  the time the offence was committed

collated  from evidence of  conduct which preceded,  attended

and followed the crime as observed in Ratan Lal vs. State of

Madhya Pradesh, (1970) 3 SCC 533, as follows:

“2. It is now well­settled that the crucial point of time at which unsoundness of mind should be

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established is the time when the crime is actually committed and the burden of proving this ties on the accused.  In D.G. Thakker v. State of Gujarat it was laid down that “there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code, the accused may rebut it  by  placing  before the  Court all the relevant evidence – oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings”.   

13. If from the  materials placed on record, a reasonable

doubt is created in the mind of the Court with regard to the

mental condition of the accused at the time of occurrence, he

shall  be entitled to the benefit  of  the reasonable doubt and

consequent acquittal, as observed in Vijayee Singh vs. State

of U.P., (1990) 3 SCC 190.   

14. We shall  now consider the sufficiency of  other medical

and defence evidence to examine if a reasonable doubt is

created with regard to the mental state of the appellant at the

time of commission of the assault on a preponderance of

probability, coupled with the complete lack of consideration of

the evidence of P.W.14.   Merely because an injured witness,

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who may legitimately be classified as an interested witness for

obvious reasons,  may have stated that the appellant was not

of unsound  mind, cannot absolve the primary duty of the

prosecution to establish its case beyond all reasonable doubt

explaining why the plea for unsoundness of mind taken by the

accused was untenable.  

15. The accused was taken into custody on 28.09.2006.

Charge­sheet was submitted on 29.12.2006 and commitment

done on 16.02.2007.   The Trial Court records reflect several

medical visits in prison, even weekly, 12 in number, between

the period  from 09.01.2007 to 07.04.2007, administering of

antipsychotic drugs such as tablet Haloperidol and tablet

Olanzapine and tablet  Diazepam  to the appellant  with the

impression recorded by the Doctor that the patient is

psychotic and needs continuation of treatment.   The

significance of use of the words “continuation” cannot be lost

sight of, and has obviously been used with regard to a pre­

existing ailment and which includes the period prior to and

from 26.09.2006 to 28.09.2006. On 03.05.2007, an

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application was moved on behalf of the appellant under

Chapter­XXV of the Code of Criminal Procedure that he was

not fit to face trial.   A fresh medical report was called for on

14.06.2007 which opined  on 19.06.2007  that the  appellant

was a chronic patient of psychotics who has been evaluated

time and again by the Mental Hospital, Nagpur, the present

doctor at Akola and also by the Psychiatrist.  On 13.07.2007,

the Trial Court directed him to be sent to the Mental Hospital

and called for a fresh report.  On 11.04.2008, fresh report was

called  for  and the appellant  was prescribed Trinicalm Forte

tablet/Trinicalm Plus tablet  amongst  other  medicines.  The

treating  Doctor,  Dr. Pramod  Thakare, opined in  writing on

20.05.2009 as follows:

“1) Above named prisoner is suffering from mental illness (psychosis) since unknown duration.  He is being treated and examined by several psychiatrists attached to Govt. Medical College and Hospital, Akola since January 2008 during specialists visit to prison.

2) This prisoner showed suicidal tendency, aggressive behavior, disturb sleep, poor communication and occasional erratic behavior.

3) He was treated with a various antipsychotic drugs since January 2008 till today.

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…..At present he is under control with antipsychotic drugs and is still  maintained on drugs.  He  may be referred to Mental Hospital, Nagpur for further investigations and expert opinion, for further proceedings.”

16. The nature of illness of the appellant, and its correlation

to the nature of treatment required may appropriately be set

out as follows:

 Haloperidol is used to treat certain mental/mood disorders (e.g., schizophrenia, schizoaffective disorders). This medicine helps you to think more clearly, feel less nervous, and take part in everyday life. It can also help prevent suicide in people who are likely to harm themselves. It also reduces aggression and the desire to hurt others. It can decrease negative thoughts and hallucinations.

 Olanzapine  is an antipsychotic medication that affects chemicals in the brain.  Olanzapine is used to treat the symptoms of psychotic conditions such as schizophrenia and bipolar disorder (manic depression)  

 Diazepam  is used to treat anxiety, alcohol withdrawal, and seizures. It is also used to relieve muscle spasms and to provide sedation before medical procedures. This medication works by calming the brain and nerves. Diazepam belongs to a class of drugs known as benzodiazepines.

 Trinicalm Forte Tablet is a combination of three medicines: Chlorpromazine, Trihexyphenidyl and Trifluoperazine. Chlorpromazine is a typical antipsychotic. It works by blocking the action of dopamine, a chemical messenger in the brain that affects thoughts and mood. Trihexyphenidyl

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is an ant cholinergic which works on the nervous system and corrects some of the side effects occurring during antipsychotic treatment. Trifluoperazine is a typical antipsychotic. It works by blocking the action of dopamine, a chemical messenger in the brain that affects thoughts and mood.

 Trinicalm Plus 5 mg/2 mg Tablet is a combination of two medicines: Trifluoperazine and Trihexyphenidyl. Trifluoperazine is a typical antipsychotic. It works by blocking the action of a chemical messenger (dopamine) in the brain that affects thoughts and mood. However, it may cause side effects such as involuntary movements (shaking of hands, muscle spasms). Trihexyphenidyl is added to treat and prevent these side effects.

17.  C.W.1 was also examined by the defence as D.W.3 and

deposed that he had no materials with regard to the previous

history of the appellant, that none of his relatives were present

at the time of such examination, and he could not therefore

say anything regarding any pre­existing mental disorder of the

appellant.  

18. D.W.1, the sister of the appellant, and his mother D.W.2,

had stated that the appellant had to be tied up at times and

was unable to take care of himself, including clothing on his

person.   The prosecution did not deny the fact of a treating

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Psychiatrist at Akola, by the name of Dr. Kelkar, mentioned by

the witness.  The appellant  and his family  were poor  people

and could hardly be expected to meticulously preserve medical

papers or lead expert evidence as observed in  Ratan Lal

(supra).  Merely because five years later in the witness box the

witness may have stated that there was no complaint from the

police with regard to the conduct of the appellant in custody,

the trial judge manifestly erred in his conclusion with regard

to the mental state of the appellant at the time of occurrence

by testing it on the touchstone of the present demenaour in

court and present conduct of the appellant, without any

reference to the  medication  that  was being  provided to the

appellant  while in  custody.  Naturally, if the  appellant  was

being provided proper medical treatment during custody, his

condition would certainly improve over time.   

19. The trial judge erred in proper consideration and

appreciation of evidence, virtually abjuring all such evidence

available raising doubts about the mental status of the

appellant at the time of commission of the offence, so as to

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leave his conviction as a foregone conclusion. The trial judge

unfortunately did not consider it necessary to put further

questions to P.W.14 with regard to the hospitalisation of the

appellant immediately after the occurrence and why the

prosecution  had  not placed the  necessary evidence in this

regard before the court.  The truth therefore remained elusive,

and justice thus became a casualty.  The Trial Judge therefore

erred in his duty, as observed in State of Rajasthan vs. Ani

alias Hanif and others, (1997) 6 SCC 162 as follows:

“12. Reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation.  A taciturn Judge may be the model caricatured in public mind.  But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved.   Criminal trial should not turn out to be a bout or combat between two rival sides with the Judge performing the role only of a spectator  or  even an umpire to  pronounce  finally who won the race.   A Judge is expected to actively participate in the trial, elicit necessary  materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is  nothing  which  inhibits  his  power to  put questions to the witnesses, either during chief examination or cross­examination or even  during re­examination to elicit truth.  The corollary of it is that if a Judge felt that a witness has committed an

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error or a slip it is the duty of the Judge to ascertain whether it  was so, for, to  err is  human and the chances of erring  may  accelerate  under stress of nervousness during cross­examination.   Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence­collecting process.   It is  a useful  exercise for  trial  Judge to remain active and alert so that errors can be minimized.”

20. The  Appellate  Court also had a duty to consider the

nature of the evidence led by P.W.14 and the other medical

evidence available on record  with regard to the appellant.

Unfortunately, it appears that the Appellate Court also did not

delve into the records in the manner required, as observed in

Rama and others vs. State of Rajasthan, (2002) 4 SCC 571

“(4) ……  It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot  proceed to  dispose  of the  appeal  upon appraisal of evidence by the trial court alone especially when the  appeal  has  been  already  admitted  and  placed for final hearing.   Upholding such a procedure would amount to negation of valuable right of appeal of an accused,  which cannot be permitted under law.”

21. We are therefore of the considered opinion, that the

appellant has been able to create sufficient doubt in our mind

that he is entitled to the benefit of the exception under section

84 I.P.C. because of the preponderance of his medical

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condition at the time of occurrence, as revealed from the

materials and evidence on record.  The prosecution cannot be

said to have established its case beyond all reasonable doubt.

The appellant is therefore entitled to the benefit of doubt and

consequent acquittal.  The appeal is allowed.  He is directed to

be released from custody unless wanted in any other case.

22. In view of  our  conclusions  and findings  based  on  the

medical evidence with regard to the appellant, it is considered

necessary to give further directions under Section 335 or 339

of the Criminal Procedure Code, as the case may be, so that

the appellant is not exposed to vagaries and receives proper

care and support befitting his right to life under Article 21 of

the Constitution of India.  A copy of this order be sent to the

District Legal Services Authority, Akola for the needful.

…………...................J. [A.M. KHANWILKAR]

…………...................J. [NAVIN SINHA]

NEW DELHI JULY 02, 2018.

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