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TMI Blog2018 (7) TMI 2049X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. P.W.14, in his examination-in-chief, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 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 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 application was moved on behalf of the appellant under Chapter-XXV 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 behav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pre-existing 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 condition at the time of occurrence, as revealed from the materials and evidence on record. The prosecution cannot be said to have estab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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