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1999 Supreme(Bom) 235
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Vishnu Sahai Smt. Ranjana Desai, JJ.
Anand Narayan Mallav ..... Appellant.
Versus
The State of Maharashtra ..... Respondent.
Criminal Appeal No. 196 of 1995, decided on 24-3-1999.
Advocates appeared :
Shekhar Ingawale holding, for Harshad V. Nimbalkar Mrs. Pratibha R. Ghorpade, for appellant.
I.S. Thakur A.P.P., for State.
Headnote:Sections 161, 154, 165, 235 and 313-5ee Indian Penal Code, 1860, Sections 300, 302, 323 and 324.
Sections 3, 45, 59 and 61-See Indian Penal Code, 1860, Sections 300, 302 and 324.
Section 84-Benefit of plea of insanity-Burden is on accused to prove defence of insanity-Held on analysis of entire evidence accused failed to discharge his burden of proving insanity defence beyond reasonable doubt-Even four witnesses clearly stated that accused was normal and not insane at time of commission of offence.
Section 84-Benefit of insanity.-A perusal of section 84, Penal Code shows that if a person at the time of commission of the offence by virtue of unsoundness of mind is incapable of knowing the nature of the act or what he has doing was either wrong or contrary of law, he would be entitled to the benefit of plea of insanity. Where the defence witness, the doctor stated that the accused \vas under his treatment being a case of schizophrenia but his evidence did not show that at the time of the incident by virtue of unsoundness of mind, the accused did not comprehend the nature of his act or what he was doing either wrong or contrary to law, on the evidence on record the accused failed to discharge the burden of proving the defence of insanity by preponderance of probabilities.
Section 84-Criminal Procedure Code, 1974, Section 313-It is not the law that it is obligatory for the accused to plead insanity-Law only requires that by a preponderance of probabilities it should have been established.
Section 300, Clause thirdly - Injuries inflicted on person of deceased causing massive internal damage involving right lung, severing of small intestines and left kidney-Naked perusal of injuries leading to irresistible inference that they were sufficient in ordinary course of nature to cause death-Absence of statement to that effect of the doctor would be of no consequence.
Sections 300, 302, 323 and 324-Evidence Act, 1872, Sections 3, 45, 59 and 61-Criminal Procedure Code, 1973, Sections 161, 154, 165, 235 and 313-Death by Knife attack caused by brother-Evidence of eyewitnesses consistent, corroborative with medical evidence also-Prompt FIR-Knife and blood-stained clothes recovered-Accused involvement confined even by parents of accused and neighbour-Contention of insanity-No proof of insanity-No such reference occurring in FIR or statements under Sections 161 or 313, Cr PC-Further contention of no intention to kill-Several injuries caused which were sufficient in ordinary course to cause death-Held, thus case coming under Section 300 thirdly, conviction under Sections 302, 323 and 324 justified. - Evidence is corroborated by the nature of the anti mortem injuries found on the person of the deceased and also by those on the person of N, K and Ka. In Court has set out their injuries extensively and to avoid repetition Court is not reiterating them. Their naked perusal would show that they could be caused by knife. Apart from medical evidence, assurance to the ocular account is rendered by the circumstance that the appellant was apprehended on the spot with a blood- stained knife which was seized under a panchnama and sent to the Chemical Analyst who found thereon blood of B group namely blood-group of the deceased.
The appellant has neither been able to demolish his spot arrest or recovery.
The prompt FIR of the incident lodged by N and recorded the same morning at General Hospital Sholapur by PSI D wherein the appellant is named and the broad features of the prosecution set out also lends assurance to the ocular account. It is pertinent to point out that the APP sought permission to cross-examine N and during cross-examination by him N admitted that neither in his FIR nor in his statement under Section 161, Cr PC had he stated that the appellant was insane nor had mentioned about his conduct the previous night. He also admitted that it was his desire to see that he did not remain in Jail.
It is pertinent to point out that the three other ocular witnesses in categorical terms have stated that the appellant was normal and not insane at the time of the incident
Evidence and Proof.-Where the evidence of eye-witnesses found reliable and corroborated by injuries found on deceased and others then involvement of accused was proved beyond reasonable doubt.
"(i) under section 302 I.P.C. to imprisonment for life; AND
ii) under sections 324 and 323 I.P.C. to undergo three months R.I. on each count."
The substantive sentences of the appellant were ordered to run concurrently.
2. In short the prosecution case runs as under:
The informant Narayan Mallav (P.W. 2) is the father of the appellant. Narayan Mallav had a son elder to the appellant named Dattatraya, the deceased. Kaushalya Mallav (not examined) is the wife of Narayan Mallav and Kamini Dattatraya Mallav (P.W. 7) is the widow of the deceased Dattatraya. The said persons resided jointly in House No. 9/194 in Raviwar Peth in the town of Solapur.
At the time of incident Dattatraya was employed as a Typist-cum-Clerk in the office of the S.D.O. Kurduwadi. It is said that the appellant had failed twice in the higher secondary examination and used to quarrel with the informant.
On 8th August, 1994, at about 8 a.m. Narayan Mallav wanted to proceed to the temple on a cycle. The appellant asked him not to do so as he wanted the cycle. He abused him. On this Dattatraya reprimanded him and reminded him that since he was maintained by Narayan Mallav he should not abuse him. On this score there was a quarrel between the appellant and Dattatraya. Thereafter as usual Dattatraya went to Kurduwadi, where he was employed. He returned back at 9/9.30 p.m.
On 9th August, 1994, at about 5.30 a.m. all the members of the family got up from their sleep. Since Dattatraya had to go to his office late, he slept on a cot in the room of the informant. At about 7.30 to 7.45 a.m. the appellant came to Kamini Dattatraya Mallav in the kitchen and asked her as to what time Dattatraya would be leaving for his work. She replied that he would be leaving at 11.00 a.m. Thereafter the appellant went to the room where Dattatraya was sleeping. One or two minutes later, Kamini, Narayan and Kaushalya heard cries of Dattatraya "Dada". They rushed. They saw that the appellant who was having a big knife in his hand was inflicting blows with the same on Dattatraya. When they intervened they were injured. It is said that Dattatraya ran out from the room where he was assaulted and reached near the gate of the house and there also the appellant inflicted knife blows on his person. He was seen on the gate inflicting knife blows on Dattatraya by P.S.I. Shankar Nimbole P.W. 8 who with the help of police constable Rathod who was passing by the Road apprehended him with the knife.
3. The evidence of P.S.I. Shankar Nimbole (P.W. 8) is that alongwith the appellant and the knife he proceeded to Jail Road Police Station and handed over both the appellant and the knife at about 8.25 a.m. the same day to P.H.C. Rashid Shaikh (P.W. 11) at the said police station.
4. The evidence of Narayan Mallav shows that immediately after the incident he went to Rajendra Chowk, brought a rickshaw from there; put Dattatraya in it; and took him to General Hospital, Solapur where the Doctor pronounced him dead.
The evidence of Narayan Mallav also shows that at General Hospital, Solapur, the police came and his F.I.R. (Exhibit 16) was recorded.
In this connection it would be pertinent to refer to the evidence of P.S.I. Suresh Dumal (P.W. 15), who stated that on 9th August, 1994, on receiving information from P.H.C. Shaikh, he proceeded to General Hospital, Solapur, where he found Dattatraya Mallav to be dead and recorded the F.I.R. of Narayan Mallav (P.W. 2) the father of Dattatraya.
On the basis of the F.I.R. a case under section 302 I.P.C. was registered against the appellant.
5. The injuries of Kaushalya Mallav, Kamini Mallav and Narayan Mallav were medically examined the same day at 9.10 a.m., 9.45 a.m. and 10 a.m. respectively
