PRABHU SAHAI BARLA Vs. STATE OF ASSAM

Every person who is mentally diseased, is not ipso facto exempted from criminal liability. There is a distinction between legal insanity and medical insanity and the burden of proof lies on the accused to prove his insanity. The burden is not so onerous as that cast upon the prosecution to prove that the accused committed an act with which he is charged with. As per law, medical insanity can be proved by producing medical prescription, etc. To prove legal insanity, defence has to examine witnesses who know about past history of the accused that he or she, in the past, was suffering from mental disorder or insanity and it continues to be so till the date of occurrence and thereafter also.

GAUHATI HIGH COURT

DIVISION BENCH

( Before : A.K. Goswami and Rumi Kumari Phukan, JJ. )

PRABHU SAHAI BARLA — Appellant

Vs.

STATE OF ASSAM — Respondent

Crl. A. No. (J) 58 of 2012

Decided on : 21-04-2016

Penal Code, 1860 (IPC) – Section 302, Section 84
Cases Referred

Kalpana Patgiri Vs. State of Assam, (2013) 5 GLR 139
Surendra Mishra Vs. State of Jharkhand, (2011) 11 SCC 495

Counsel for Appearing Parties

R.M. Choudhury, Advocate, as Amicus curiae, for the Appellant; S. Jahan, Additional Public Prosecutor, Assam, for the Respondents

JUDGMENT

Rumi Kumari Phukan, J.(Oral) – Heard Mr. R.M. Choudhury, learned Amicus curiae, appearing for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.

2. This appeal is preferred by the appellant from jail against an order dated 30.05.2012, passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 82/2009, convicting the appellant under Section 302 IPC for an offence of murder and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine, further rigorous imprisonment for three months.

3. The fact in the instant case, in brief, is that on 29.09.2008, the father of the accused, Filip Barla, lodged an FIR with the Tengakhat Police Station, Dibrugarh, to the effect that on the same day, at about 3-30 P.M., the accused person killed his three month old daughter with a spade and, on the basis of the aforesaid FIR, Tengakhat Police Station Case No. 98/2008, under Section 302 IPC, was registered. After completion of investigation, police submitted charge-sheet against the accused person under Section 302 IPC. The case was committed to the Court of Sessions on compliance of the provisions of Section 207 Cr.P.C. and the learned Sessions Judge framed charge against the accused person under Section 302 IPC and the charge was explained to the accused person to which he pleaded guilty. However, the learned Sessions Judge proceeded with the trial after framing formal charge.

4. In course of trial, prosecution examined as many as 9 witnesses including the Medical Officer and the Investigating Officer, whereas defence examined none. The plea of the defence was not of total denial, but it can be seen that it was to the extent of admission of the occurrence. However, the accused offered an explanation that he had no idea as to what had happened to him on the aforesaid day of occurrence as because he had a quarrel with his wife and he was very angry at the relevant point of time.

5. The learned trial Court, after completion of the trial, held the accused person guilty of the offence under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and also to pay fine of Rs. 2,000/-, in default, rigorous imprisonment for another three months. The accused person, who is behind the bar, preferred the present appeal through the Superintendent of the concerned jail.

6. Arguing the case on behalf of the appellant, Mr. Choudhury, learned Amicus curiae has submitted that the benefit of Section 84 IPC may be extended to the accused person in view of the conduct of the appellant who had killed his own minor daughter without having any reason for committing such heinous crime. Referring to the evidence of PW1 and PW2, i.e. the parents of the accused person, it has been urged by Mr. Choudhury that they had referred to the demeanour of the accused, who sometimes remained subdued but again used to become normal. On the basis of the aforesaid evidence and the facts and circumstances, the defence has tried to impress upon the Court that the case comes under Exception of Section 84 of the IPC and the conviction of the accused person, under Section 302 IPC, is bad in law and liable to be set aside. Learned Amicus curiae further submits that though there appears to be two eye witnesses to the occurrence, namely, PW3 and PW4, the evidence of PW4 is not specific as regards the involvement of the accused-appellant with the alleged offence inasmuch as, in her cross-examination, she had stated that she could not ascertain as to who hacked the girl in the said incident as there was a scuffle between the husband (accused-appellant) and his wife. It has also been urged that had the accused-appellant been a normal person, then he could not have committed such a heinous crime and the accused-appellant, in his statement under Section 313 Cr.P.C., categorically stated that he was not aware as to what had happened to the child as he was very much angry at that point of time.

7. Ms. Jahan, learned Additional Public Prosecutor has vehemently opposed such contention of the learned Amicus curiae. According to her, the evidence on record is highly insufficient to extend the benefit of Section 84 IPC to the accused-appellant as there is not even a whisper from the parents of the accused about such mental illness suffered by the accused-appellant at the time of the occurrence, or prior to the occurrence, or post occurrence. Relying upon the decision of the Apex Court in the case of Surendra Mishra v. State of Jharkhand, reported in (2011) 11 SCC 495, learned Additional Public Prosecutor has submitted that no such mental insanity has been proved by the accused-appellant during the course of trial so as to extend the benefit of Section 84 IPC to him. It has also been pointed out that the evidence of the eye-witness (PW4) cannot be rejected only on the ground that in her cross-examination, she agreed to the suggestion put to her by the defence side. The demeanour of the witness has been recorded by the trial Court which is very much relevant for the purpose of deciding the credibility of the evidence of the said witness. PW4 being a rustic woman, she gave positive replies to the questions asked/suggestions made to her in cross-examination, but it is not sufficient to destroy the credibility of the evidence of the said witness as material portion of her statement is also corroborated by other witness, namely, PW3, while PW4 stated that she saw the accused hacking the child.

8. Out of the nine witnesses examined by the prosecution, PW1 and PW2, namely, Phillip Borla and Rohili Borla, respectively, are the parents of the accused-appellant, who have stated that though they were not in the house at the time of the occurrence, on being informed by their grandson that the accused-appellant had killed his daughter, they went to the house of the accused-appellant and found the dead body of their grand-daughter lying in the house and, thereafter, PW1 filed the FIR. In his cross-examination, PW1 deposed that sometimes he found the accused-appellant in subdued mood and that whenever the accused-appellant used to be in subdued mood, he talked to people about important matters only.

9. PW2, in her deposition stated that she came to know from the people about the killing of her grand-daughter by her son and that upon killing his daughter the accused-appellant had taken the hoe along with the baby and gone to the police station by riding on a bicycle. In her cross-examination, PW2 stated that the accused-appellant used to be in a subdued mood sometime. However, she categorically stated that she did not see the accused displaying such behaviour before the incident.

10. PW3, Katrina Borla, who is an eye-witness, deposed in her evidence that at the time of the incident she was collecting vegetables near her house in the afternoon and, at about 3-00 P.M., when a quarrel took place between the accused and his wife, their child fell down from the lap of the wife as a result of the scuffle arising out of the quarrel. Then the accused hacked the baby with a hoe as a result of which the child died. In her cross-examination, PW4 categorically stated that she saw the accused-appellant hacking his daughter.

11. PW4, namely, Ruth Barla, who is also an eye-witness to the incident and a neighbour of the accused-appellant, deposed in her evidence that at the time of the incident she was collecting vegetables near her house along with PW3 and, at about 3-00 P.M., when a quarrel took place between the accused and his wife, their child fell down from the lap of the wife as a result of the scuffle arising out of the quarrel. Then the accused hacked the baby with a hoe as a result of which the child died. In her cross-examination, PW4 categorically stated that she saw the accused-appellant pulling the child out of her mother’s lap. However, she stated in cross-examination that she cannot say if the accused had hacked the girl or the child fell down in the scuffle.

12. PW5, namely, Anil Thapa, who was a driver of a vehicle of the Tengakhat Police Station, deposed in his evidence that on the day of the occurrence, a boy came to the Police Station on a bicycle taking along a dead body of a child in a bag and one hoe and thereafter police seized the hoe and the bicycle. PW5 further stated that police obtained his signature in the seizure list. PW5 proved the seizure list vice Ext.-3 and his signature thereon as Ext.-3(1).

13. PW6 is the doctor who performed post-mortem examination on the dead body of the child. In her evidence, PW6 deposed that on requisitioned by police, she performed post-mortem examination on the dead body of a three month old female child. According to the post-mortem report, she found (i) incised wound of 10cm x 4cm over right side of the abdomen obliquely placed 8cm below right nipple and 1cm from the mid line, (ii) lacerated wound over the nose of 2cm x 1cm reddish in colour. PW6 opined that death was due to shock and haemorrhage as a result of injuries sustained. According to the doctor, injury no. (i) was sufficient to cause death of a person in ordinary course of nature.

14. One Jadav Buragohain, who was posted as a constable at the Tengakhat Police station at the time of the occurrence, as PW7 had deposed that on the day of the occurrence, the accused appeared at the police station by riding on a bicycle along with a hoe and a dead body of a 3/4 month old baby in a bag. On being asked, the accused said that he had killed the child by beating. At the police station the daroga seized the hoe and the bicycle and prepared a seizure list and obtained his signature and, later on, he took the dead body to hospital for post-mortem examination. PW7 proved the seizure list as Ext.-3 and his signature as Ext.-3(1).

15. PW8, namely, Pinky Munda, is a neighbor of the accused-appellant. In her evidence, she deposed that on the day of the occurrence, at around 3-00 P.M., the wife of the accused, namely, Sisilia Barla, came running from her house and told her that the accused had hacked their child with a hoe and that after telling this she ran away from her house out of fear. She also deposed that taking along the deceased child in a bag and the axe, the accused went to the police station by riding on a bicycle and she thought that he had gone to bury the dead body.

16. The Investigating Officer, PW9, who was the in-charge, Tengakhat Police Station at the time of the occurrence, had deposed in his evidence that on 29.09.2008, at around 4-30 P.M., the accused appeared at the police station and informed that he had killed his 3 month old baby girl, Rebika Barla by hacking her with a hoe. The accused brought the dead body of the child to the police station in a bicycle along with a hoe and he made a General Diary Entry, being G.D. Entry No. 676/08, dated 29.09.2008. He seized the said hoe and the bicycle from the accused. PW9 proved the seizure list as Ext.-3 and his signature as Ext.-3(3). The dead body of the child was sent for postmortem examination.

17. Bharati Gogoi was examined as CW1 to prove the statements of the witnesses recorded under Section 164 Cr.P.C. She has deposed in her evidence that on 03.10.2008, while she was working as a Bench Assistant in the Court of T. Ari, Judicial Magistrate, Smti. Katrina Barla, Sisilia Barla, Ruth Barla and Habiram were produced before the court of T. Ari as per the order of the CJM for recording of their statements and, accordingly, the magistrate recorded the statements of the said witnesses and the witnesses put their thumb impressions vide Ext.-1, Ext.-2 and Ext.-3, statements recorded under Section 164 Cr.P.C.

18. It is evident from the evidence on record that the said incident was witnessed by two eye witnesses and they are none but the neighbours of the accused-appellant and they do not have any hostile relation with the accused-appellant so as to implicate him with false accusation. Their evidence is clear and convincing to the effect that after the quarrel with his wife, the accused-appellant dealt a fatal blow upon the minor child, who fell down from the lap of his wife. There is nothing on record to indicate that the accused-appellant gave the blow under any provocation or under any such mental state of affairs which can be termed as mental unsoundness. Though some suggestions were advanced to the witnesses, particularly, to PW1 and PW2, i.e. the parents of the accused-appellant, they denied that the accused-appellant was suffering from any mental illness since prior to the incident or post-occurrence. The accused-appellant, on the other hand, in his statement made under Section 313 CrPC, almost admitted to have committed the offence. However, merely because of his reply, that he did not know as to what had happened to him at the time of the occurrence, is not sufficient to prove that he had committed the crime in a unsoundness state of mind.

19. At this stage, in order to appreciate the submission of Mr. Choudhury, with regard to his claim that the accused-appellant deserves to be extended the benefit of Section 84 IPC, in proper perspective, we deem it appropriate to reproduce Section 84 IPC, which reads as follows:

“84. Act of a person of unsound mind:

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law.”

20. Apparently, for determining as to whether the accused-appellant is entitled to be given the benefit of Section 84 IPC, the Court has to consider whether the person, accused of committing the crime, was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. It is equally true that such circumstance must be established by credible evidence.

21. In the case of Surendra Mishra (supra), the Apex Court observed that in order to establish that the acts done are not offence and come within general exception, it is required to be proved that at the time of commission of the act, the accused by reason of unsoundness of mind was incapable of knowing that his acts were wrong or contrary to law. Paragraph 17 and 18 of aforesaid judgement being relevant for the purpose of this case, are quoted herein below:

“17. It has to be borne in mind that to establish that acts done are not offence and come within general exception it is required to be proved that at the time of commission of the act, the accused by reason of unsoundness of mind was incapable of knowing that his acts were wrong or contrary to law. In the present case the prosecution has proved beyond all reasonable doubt that immediately after the appellant had shot dead the deceased, he threatened his driver PW1 Vidyut Kumar Modi of dire consequences. Not only that, he ran away from the place of occurrence and threw the country-made pistol, the weapon of crime, in the well in order to conceal himself from the crime. However, it was recovered later on. The aforesaid conduct of the appellant subsequent to the commission of the offence clearly goes to suggest that he knew that whatever had done was wrong and illegal. Further, he was running a medical shop and came to the place of occurrence and shot dead the deceased. Had the appellant been a person of unsound mind, it may not have been possible for him to run a medical shop.

18. We are of the opinion that the appellant though suffered from certain mental instability even before and after the incident but from that one cannot infer on a balance of preponderance of probabilities that the appellant at the time of commission of the offence, did not know the nature of his act; that it was either wrong or contrary to law. In our opinion, the plea of the appellant does not come within the exception contemplated under Section 84 of the Penal Code.”

22. Going back to the question whether, in the present case, the act of killing his daughter by the accused-appellant was an act of unsound mind, we find that there is no evidence whatsoever on record indicating that the accused-appellant was suffering from any kind of mental disease at the relevant point of time. There is no evidence either to show that at the time of committing the offence of murder, he was in the state of mental insanity and was unable to perceive the consequences of his conduct. Rather, after hacking his baby daughter, he himself went to the police station and surrendered before the Officer-in-charge along with the dead body and the weapon of offence and admitted the offence. The aforesaid conduct of the appellant subsequent to the commission of the offence clearly indicates that he knew that whatever he had done was wrong and illegal. In order to come within the exception contemplated under Section 84, the defence has to establish, by adducing convincing evidence, that the act done by the accused was an act of unsoundness of mind so that the Court can come to the conclusion that the accused was suffering from mental illness and was unsound mind at the time of committing the crime for which he was unable to gauge the consequences of his act.

23. In the case of Kalpana Patgiri v. State of Assam, reported in 2013 (5) GLR 139, this Court followed the same principle and held that every person who is mentally diseased, is not ipso facto exempted from criminal liability. There is a distinction between legal insanity and medical insanity and the burden of proof lies on the accused to prove his insanity. The burden is not so onerous as that cast upon the prosecution to prove that the accused committed an act with which he is charged with. As per law, medical insanity can be proved by producing medical prescription, etc. To prove legal insanity, defence has to examine witnesses who know about past history of the accused that he or she, in the past, was suffering from mental disorder or insanity and it continues to be so till the date of occurrence and thereafter also.

24. Relying upon the aforesaid decision, Mr. Choudhury, learned Amicus curiae submits that the accused-appellant has discharged the liability to prove his insanity as per evidence. However, in view of the evidence given by the parents (PW1 and PW2) of the accused-appellant that the accused was not suffering from any such mental illness, either prior to the occurrence or after the occurrence, and also in view of the statement of the accused-appellant recorded under Section 313 Cr.P.C. admitting the occurrence coupled with his conduct of surrendering before the police, it can be safely held that the accused was of sound mind and with knowledge and intention he had caused severe blow to his minor daughter with a hoe, which resulted the death of the child. We do not find that the accused-appellant has been able to establish the medical or legal insanity, by adducing reliable and convincing evidence, that the accused-appellant committed the offence under such mental state for which his case will come within exception as envisaged under Section 84 IPC. Therefore, we are of the considered opinion that the accused-appellant is not entitled to get the benefit under Section 84 IPC.

25. We find that the learned trial Court has properly appreciated the evidence adduced by the parties and the materials on record and came to the finding of guilt of the accused-appellant and rightly convicted him under Section 302 IPC and sentenced him accordingly. We find no infirmity in the finding so arrived at by the learned Court below. The appeal is found to be devoid of merit and, accordingly, the same is dismissed.

26. Send back the LCR.

27. Before parting with the records, this Court records its appreciation to the assistance offered by Mr. R. M. Choudhury, learned Amicus curiae, in disposal of the appeal and we direct an amount of Rs. 7,500/- shall be paid to the learned Amicus curiae by the Assam State Legal Services Authority.

(2016) 3 NEJ 612