U.V. Bakre, J.
1. Heard Mr. Rivankar, learned Public Prosecutor appearing on behalf of the appellant and Mr. Menezes, learned Amicus Curiae for the respondent.
2. This appeal is directed against the judgment and order dated 28/06/2012 passed by the learned Additional Sessions Judge- I (Trial Judge, for short) in Sessions Case No. 10/2010/I.
3. Initially, charge sheet No.09/2009 was filed against the accused for the offence punishable under section 307 of Indian Penal Code (I.P.C., for short). The allegation was that the accused, on 01/12/2009 at 22.00 hours at House no. 202, near Pai Hospital, at Vaddem, Vasco, after latching his bed room from inside, assaulted his wife, Rupa alias Samiksha Shetye, by stabbing her in her stomach by means of a knife and caused grievous injuries to her and attempted to commit her murder. Charge was framed by the Trial Judge for the said offence punishable under section 307 of the Indian Penal Code (I.P.C., for short) to which the accused pleaded not guilty. The prosecution examined 12 witnesses and 13th witness partly till 01/09/2010. The deposition of Rupa alias Samiksha Shetye was scheduled to be recorded on 17/09/2010.
4. Unfortunately, on 06/09/2010, the said Rupa alias Samiksha Shetye died. The prosecution filed an application under Section 216 of the Code of Criminal Procedure, 1973 (Cr. P.C., for short) which was allowed by the Trial Judge by order dated 12/10/2010 and charge was altered from Section 307 of I.P.C. to Section 302 of I.P.C. Fresh charge was framed, on 12/10/2010, to the effect that the accused committed the offence of culpable homicide amounting to murder under Section 300 of I.P.C. and punishable under Section 302 of I.P.C. for having stabbed his wife Rupa alias Samiksha Shetye on 01/12/2009 in her stomach thereby causing dangerous injuries to her, with the intention of causing her bodily injuries as he knew, were likely to cause her death due to which she succumbed to the injuries on 06/09/2010. The accused pleaded not guilty. The deposition of PW13, which was partly recorded, was then completed on 26/10/2010.
5. The case of the accused was that he was mentally not sound. On 03/11/2010, the accused moved an application before the Trial Judge to refer him to Institute of Psychiatry and Human Behaviour (IPHB), Bambolim. for examination and medical treatment. Accordingly, he was referred to IPHB and provisional report was received and the accused was admitted to IPHC, on 04/11/2010, for treatment due to which further proceedings were stayed under Section 329 of Cr.P.C. On 12/01/2011, report dated 05/01/2011 was received from IPHB certifying that the accused was fit for trial. The trial resumed under Section 331 of Cr.P.C. and was completed on 17/04/2012. The prosecution examined 8 more witnesses. Thus, the prosecution in all examined 21 witnesses in support of its case.
6. The statement of accused came to be recorded under Section 313 of Cr.P.C., in which he denied the case of the prosecution and further stated that he was not mentally fit prior to the incident and that he was admitted to the IPHB, Bambolim. It appears that since during the statement under Section 313 of Cr.P.C. the accused had stated that all his medical certificates were at home, by order dated 05/05/2012 house of the accused was ordered to be opened and PW13, PSI Filomeno Luis Costa, carried out panchanama on 11/05/2012 and attached the medical papers which were in the house. PW13 was recalled and his further evidence, with regard to the said panchanama (Exhibit 98) was recorded. However, the said panchanama and medical papers, did not reveal any evidence about mental condition of the accused prior to the date of the incidence.
7. The accused did not examine himself or any witness in his defence.
8. Upon consideration of the entire evidence on record and upon hearing the learned Counsel for the parties, the learned Trial Judge held that the prosecution had proved beyond reasonable doubt that on 01/12/2009 at around 22.00 hours in the house at Vaddem, Vasco, the accused had stabbed his wife Rupa alias Samiksha Shetye with a knife in the abdomen thereby causing dangerous injuries to her. It was further held that the said injuries caused to Rupa alias Samiksha Shetye were not proved to be sufficient in the ordinary course of nature to cause her death and, therefore, the prosecution failed to prove that the accused had committed the offence of murder punishable under Section 302 of I.P.C. The Trial Judge held that the prosecution also could not prove that the accused had the mens rea at the time of incident. However, the Trial Judge further held that the accused, at the time of incidence, was of unsound mind and incapable of knowing the nature of his acts and that he was doing what was either wrong or contrary to law. The accused was therefore given benefit of Section 84 of I.P.C. and was acquitted of the offence punishable under Section 302 of I.P.C. The jailor was directed to release the accused from custody, if he was not detained in any other crime. This judgment and order is under challenge, in the present appeal.
9. Mr. Rivankar, learned Public Prosecutor, for the State, while assailing the impugned Judgment, submitted that the accused could not have been given benefit of Section 84 of I.P.C. since there was absolutely no evidence on record to establish that the accused was of unsound mind at the time of incident. He submitted that the evidence of Dr. Mary D'Souza (PW14) only showed that the accused was fit to stand trial. The learned Public Prosecutor submitted that except suggestions put to some of the witnesses and a bare statement in his statement under Section 313 of Cr.P.C. to the effect that the accused was not mentally fit prior to the incident, there was absolutely no other material to hold that he was of unsound mind at the crucial time of the incident. He submitted that there was absolutely no medical evidence even to suggest that the accused was of unsound mind at the time of incident. The learned Public Prosecutor further urged that in the first dying declaration the wife stated that her husband was of unsound mind and in the second dying declaration she stated that he was not in good sense. According to the learned Public Prosecutor, the deceased had not made the statement in English language but had spoken in her own language. He submitted that neither the Police Sub Inspector who recorded the first dying declaration nor the Sub Divisional Magistrate who recorded second dying declaration had stated as to what were the exact words of the deceased. He submitted that the finding of the Trial Judge that the accused was of unsound mind at the time of incident was based on conjectures and presumption and the same cannot stand. He pointed out that the incident had occurred on 01/12/2009 whereas the deceased died after about 8-9 months and, therefore, the question arises as to whether dying declaration should be relied upon or not. He submitted that the finding of the Trial Judge that the accused had caused dangerous injuries with knife to the deceased has not being challenged by the accused and has become final and even otherwise there was ample evidence in the form of âlast seen togetherâ. He, therefore, submitted that the judgment of acquittal should be set aside and the accused should adequately be punished for the offence which he has committed. Learned Public Prosecutor relied upon the following cases :
(1). Sitaram Hiraman Jopale V/s. State of Maharashtra - [(2013) 0 All MR (Cri) 3237]
(2). Sheralli Wali Mohammed V/s. State of Maharashtra - [AIR 1972 SC 2443]
(3). Tamil Nadu Lakshmaiah v/s. State of Karnataka - [AIR 2001 SC 3828]
10. On the other hand, Mr. Menezes, learned Amicus Curiae, on behalf of the respondent, submitted that in a criminal case, the entire burden rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and insofar as the accused is concerned he could show reasonable doubt about the unsoundness of his mind at the time of incident. Learned Counsel urged that the accused can show this even from the evidence of the prosecution. He submitted that the learned Trial Judge relied upon the dying declarations which were produced and relied upon by the prosecution and, therefore, such dying declarations had to be accepted in their entirety. Mr. Menezes, pointed out that in the first dying declaration it was clearly stated by the deceased herself that the accused was of unsound mind. He further submitted that the said statement of the deceased had to be read along with established conduct of the accused at the time of the incident and that was sufficient to imbibe reasonable doubt in the mind of the Court to give benefit to the accused under Section 84 of I.P.C. He relied upon the case of âDahyabhai Chhaganbhai Thakker vs State Of Gujaratâ [AIR 1964 SC 1563]. He therefore urged that no interference is called for with the impugned judgment and order.
11. We have gone through the original records and proceedings. We have considered the arguments advanced by the learned Counsel for the parties and also the judgments relied upon by them.
12. The first point which arises for determination is whether the death of Rupa alias Samiksha Shetye was homicidal?
13. The evidence of PW12, Dr. Gautam Kamat, who was then attached to the Department of General Surgery of Goa Medical College, Bambolim, as the Senior Resident, reveals that Samiksha Shetye was admitted to the Surgery Ward of Goa Medical College Hospital on 01/12/2009 with stab injury. On examination of her abdomen following injuries were found.
(1). There were two penetrating wounds in the right iliac fossa, measuring 3 x 2 cms and 3 x 2 cms approximately 0.5 cms from each other, communicating into peritoneal cavity.
(2). There was a deep laceration of 3 x 1 cms in the right hypo chondriac region.
(3). There was also a deep laceration of 3 x 2 cms on the left lumber region.
(4). There was a laceration on the right hand of 3 x 0.5 x 0.5 cms at the base of the thumb.
5. There was also a laceration on the left hand of 4 x 1.0 x 0.5 cms, in the first web space.
According to PW12, Samiksha Shetye was operated upon on 02/12/2009. Her final diagnosis, as per PW12, was that Samiksha had a penetrating abdominal injury with transaction of the small bowel. PW12 deposed that this was a dangerous injury and after treatment in the hospital she had improved. The deposition of PW12 reveals that when Samiksha was operated, it was found that the whole of her small intestines were cut and absent from the abdominal cavity. PW12 deposed that the medical literature says that at least 2 feet of the small intestines are required for normal absorption of nutrients and vitamins and this patient was bound to develop chronic malnutrition in the course of time as she did not have small intestines at all. In his cross-examination, PW12 deposed that since there were two penetrating wounds in the abdominal region, they were caused by two blows. The certificate issued and proved by PW12 is at Exhibit 39.
14. The injured Rupa alias Samiksha Shetye died on 06/09/2010 at 19.30 hours. On the same day, between 23.00 hours to 23.50 hours, Inquest Panchanama (Exhibit 93) was conducted on the dead body of Samiksha, at House No. 109, Gina, Chikalim, Vasco, in the presence of PW21, Shri Jose Rodrigues and another panch witness. On the next day, PW20, Dr. Avinash Pujari conducted postmortem examination on her dead body. PW20 noticed following wounds:
(1). Old well healed fine linear scar of abdominal surgery on front in mid line 17 cms. in length, vertical, 14 cms. from xiphi sternum and 14 cms. above pubic bone.
(2) 2 linear scars old well healed, no evidence of keloid about 0.5 cms. apart, 3 cms. long on abdomen front right iliac fossa at between the level of umbilicus 38 cms. below collar bone 6 cms. from iliac crest.
(3) Old well healed linear scar, 3 cms. long on abdomen front right hypochondriac area, parallel to costal margin 3 cms. from mid line.
(4) 1 old well healed linear scar 3 cms. long on abdomen front left side lumber region at the level at umbilicus, 3 cms. from midline.
On internal examination of abdomen, it was found that there was pallor all over and about 330cc of ascetic fluid, stomach was intact, normal in size and shape and empty. The findings of past abdominal surgery of duodeno colostomy (and to side) confirmed with evidence of pallor. All organs were shrunken, small and reduced in size pallor ++++. PW-20 opined that the probable cause of death of Samiksha Shetye could be multi-organ failure, septicemia with DIC due to short bowel syndrome in an operated case of extensive resection of small and large intestines. The Memorandum of Autopsy prepared and signed by PW20 is at Exhibit 80. PW20 opined that the injury on the deceased could have been caused by a sharp edged weapon. He deposed that if a person's intestines are removed extensively, the said person cannot survive for long. He deposed that even though Samiksha could have taken solid food, due to the absence of intestines, the absorption of vital nutrient materials was not possible leading to metabolic disorders and mal-absorption.
15. PW19, Dr. Roque Gabriel W. Pinto, the Professor and Head of Department of Pathology at Goa Medical College and Hospital, upon receipt of letter dated 07/07/2011 from PSI, Vasco, conducted microscopic examination of the tissues of the deceased and found that the deceased died due to septicemia, multi-organ failure and disseminated intra vascular coagulation. PW19 specifically stated that when the small intestine was absent in a person, it was not possible for that person to survive for long period and the reasons are lack of nutrition, metabolic disturbance and the trauma undergone by the patient. He further deposed that when whole of the intestine was absent, it was not possible to take food as absorption and digestion of food could not take place.
16. The above expert evidence of PW12, PW19 and PW20 proved the nature of injuries sustained by the deceased Samiksha Shetye and the cause of her death. The evidence of PW12 established that the whole of the small intestines of Samiksha were already cut by means of knife and absent from the abdominal cavity. The medical literature says that at least 2 feet of the small intestines were required for normal absorption of nutrients and vitamins and Samiksha was bound to develop chronic malnutrition in the course of time as she did not have any small intestines. The small intestines of Samiksha were not cut during surgery/operation. They were absent, in her body, prior to conducting surgery on her. The small intestines were found on the floor of the bedroom of the house of the accused, on 02/12/2009, during the course of the panchanama of the scene of offence. According to PW20 and PW19, the doctors who conducted postmortem examination and microscopic examination of the tissues, respectively, the probable cause of death was because of multi-organ failure and septicemia with DIC. Because of the act of cutting of the whole of the small intestines and removal of same by means of knife, the multiorgan failure and septicemia with DIC occurred and Samiskha died. There was a direct connection or association between the act and the death and such connection could not be said to be remote merely because death occurred after about 8/9 months. The nature of injuries sustained by Samiksha were such that her death could not be said to be accidental or suicidal but it was caused by human agency by means of a knife. Section 299 of I.P.C., inter alia, provides that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In terms of Explanation 2 to Section 299 of I.P.C., where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. It can therefore be said beyond doubt that the death of Samiksha Shetye was homicidal. The first point is therefore answered in the affirmative.
17. The second point that arises for determination is whether the prosecution has proved beyond reasonable doubt that the accused had stabbed his wife with knife in the abdomen causing her said dangerous injuries, on 01/12/2009 at around 22.00 hours?
18. PW1, Shri Mohan Kamat, is the father of the deceased. From 17/11/2009, he had gone to reside at the place of his deceased daughter, Samiksha. The said house belonged to the accused. His deposition reveals that on 01/12/2009, by about 10.00 p.m., he went to sleep in one bed room of the house and his son-in-law i.e. the accused latched the door of the said bed room from outside, due to which, PW1 was locked inside the room. PW1 deposed that thereafter the accused went in the next bedroom where his daughter was sleeping and latched the door from inside. After some time, PW1 heard screaming shouts of his daughter who was shouting for help. According to PW1, he also started shouting and after about half an hour police came and after opening the latch of the door, he was brought out. PW1 deposed that after he came out, the police opened the latch of the other bed room i.e. of his daughter and of the accused. PW1 saw his daughter lying in a pool of blood in the said bed room and even her flesh was lying on the floor. On the chair there was a knife and the accused was also there, having been caught by the police, in the same bedroom, with blood on his clothes. He stated that thereafter two of his sons came there and Rupa (Samiksha) was shifted to the hospital and later on his son, Vishwambar lodged complaint with the police. His cross-examination reveals that the accused had even put a Godrej lock to the main entrance door of the said house.
19. PW2, Shri Vishwambar Kamat, who is the brother of the deceased had lodged the complaint on the very same day of the incident that is on 01/12/2009 and crime was registered at Vasco Police Station at 23.15 hours. The complaint is at Exhibit 11. PW2 deposed that on 01/12/2009 at around 10.30 p.m., he was informed by his neighbour Mary Mascarenhas that there was some problem at his sister's place due to which he went there i.e. at Vaddem where his father informed him that the accused had stabbed his sister Rupa with a knife. PW2 deposed that he entered inside the house and saw his sister lying in a pool of blood in the bed room and there were some pieces of her body lying on the ground and he also saw the accused standing in the corner with blood on his clothes. PW2 also saw a knife lying on the chair. Thereafter, the deceased was shifted to Goa Medical College and PW2 proceeded to Vasco Police Station and lodged the complaint which is at Exhibit -11. PW2 stated that his father informed him as to what had happened. This narration duly corroborates the testimony of PW1.
20. PW10, Mary Mascarenhas corroborated the evidence of PW2 to the extent of her part. She stated that on 01/12/2009 she had received a phone call from some neighbour stating that the sister of PW2 was stabbed by her husband and she informed this fact to PW2.
21. The evidence of PW6, Pushkar Singh, and of his wife, Asha singh (PW17) who along with their family, were residing as a tenants in the room on the left hand side of the entrance of the house of the accused, reveals that on 01/12/2009, at about 10.00 p.m., they heard shouts of Samiksha, wife of the accused from inside the room. According to PW6, the front door of the house of the accused was not opening and the back door was also closed from inside. PW6 stated that there was a door to Bhalchandra's room which was opening into the house of the owner, but the same was latched from the owner's side. PW6 and PW17, then knocked the door of the room of said Bhalchandra, and entered inside and the door opening into the house of the accused was broken open with the help of a metal rod and thereafter PW6 entered the house of the accused and he saw the accused sitting on a bed with a knife and on seeing them, the accused threw that knife on a chair. He saw Samiksha lying naked on the floor and there was blood all around her. According to him, police came and Samiksha was taken to the hospital. PW17 stated that she did not enter the room of Samiksha but heard her saying that her husband had assaulted her and had killed her with knife. PW11, Shri Bhalchandra Gawde has confirmed that he was residing as a tenant in one room on one side of the house of the accused and his wife and that from the room that was rented out to him, there was one door by which one could enter the portion of the house occupied by the accused and his wife. He deposed that this door had a lock from the side of the house of the accused and on his side, there used to be a latch.
22. The accused was arrested on the same night of 01/12/2009. The arrest panchanama is at Exhibit 13, conducted between 23.55 hours on 01/12/2009 to 00.40 hours of 02/12/2009, which is duly proved by PW3, Tara Kerkar, a social worker. The clothes of the accused namely, the yellow coloured T-shirt and dark blue short pant, were attached. There were blood stains noticed by PW3 on the hands and legs of the accused. As per the panchanama, there were blood stains also on the stomach of the accused. Blood stains were found on both the legs of the said short pant also. PW3 deposed that in the pocket of the pant of the accused, one key of Godrej lock and two other silver colour keys make 'Link' were found. The clothes of the accused were packed and duly sealed but the keys were only put in envelope, but not sealed. PW3 identified all the said articles in the open Court.
23. After the panchanama of arrest, the accused was referred to Goa Medical College Hospital and was examined by PW7, Dr. Siddhartha Banaulikar on 02/12/2009 between 11.10 a.m. to 11.45 a.m. Following injuries were noticed on his body:-
(1) A superficial incised wound measuring 2.5 cms. X o.2 cms x 0.2 cms., reddish, fresh, tender and oblique placed near the base of 3rd , 4th and 5th fingers, over the left hand palm, front, 8.5 cms. below the left wrist joint.
(2) Superficial incised wound measuring 0.5 cm.x 0.1 cm. X 0.1 cm., reddish, fresh, tender and oblique placed over the medial part of proximal phalanx of left ring finger in the front.
Both the above injuries, according to PW7, were simple and caused by a sharp cutting weapon such as knife and were within a duration of one day prior to his examination.
24. The evidence of PW4, Zoheb Menon and the panchanama of verification at Exhibit 15, duly proved by him, establishes that the bronze colour key of Godrej lock found in the pocket of the pant of the accused could open the Godrej lock which was to the front door of the house of the accused. The silver colour lock of make 'Link' which was to the back door of the kitchen room could be opened with the help of one of the silver colour keys found with the accused during his arrest. All the said locks and keys were packed and sealed, under the panchanam at exhibit 15.
25. On 02/12/2009, the panchanama of the scene of offence was conducted in the house of the accused. PW5, Salim Sheikh, acted as one of the panch witnesses. According to PW5, they entered the house from the side rented room of one Bhalchandra and the brother of Sameer Shetye (accused) showed the house. Blood stains were seen on the ground and the knife with blood was seen on the chair. The blood stains were collected and packed and sealed and the knife was also similarly packed and sealed. A panchanama and two sketches which are at Exhibit 17-colly, were drawn. Though PW5 stated in his cross-examination that besides the knife and the blood stains, nothing else was noticed by him, however, the panchanama duly mentions about the flesh and the intestines lying on the ground, which were inserted in plastic polythene bag. The panchanama mentions that photographs were taken. Shri Pankaj Shetye, the photographer, examined as PW8 confirmed that he had gone to the house of the accused at Vaddem on 01/12/2009 at around 10.30 p.m. and at the request of PSI Jivba Dalvi (PW15), he took out about 21 photographs showing the position inside the house including the blood stains on the bed and on the floor and the intestines on the floor and the knife on the chair and also the latched doors. All the above facts are confirmed by PSI Dalvi (PW15). Eight photographs produced by PW8, along with the CD are at Exhibit 87-colly. The photographs show the doors latched from inside, the front door locked with a lock, blood on the floor and intestines, etc.
26. The above evidence on record duly proved that the accused and the deceased were the only persons in their bed room on 01/12/2009, which was latched from inside and as soon as the said bed room was opened the deceased was found therein with the said dangerous injuries and the accused was found inside with blood on his clothes and the knife which he kept on the chair. The accused had also sustained simple injuries to the left hand palm near the base of fingers and also to the left ring finger. The only conclusion that could be drawn from the above was that the accused was the author of the said injuries sustained by the deceased.
27. PW16, Dr. M. Shashi Dhar, deposed that upon receipt of the letter from P.S.I. Vasco Police Station, which is at Exhibit 65, he had endorsed on the same that the patient was conscious, oriented to time, place and person and was fit to give her statement. He deposed that in his presence P.S.I. recorded the statement of Rupa and Rupa stated that she was assaulted by her husband with a knife. He identified his signature on the said statement at point B and the thumb impression of Rupa at point A. The said statement of the deceased is at Exhibit 66. A perusal of this statement reveals that the same was recorded by PSI John A. Fernandes at Goa Medical college. In his cross-examination, PW16 stated that when the statement of Mrs. Rupa was recorded, she was under his care. PW16 stated that Rupa gave her statement in Konkani language which he could understand and since police had requested him to be present at the time of recording the statement, he was present at that spot. According to him, he read the statement before signing and it was as per her say. The testimony of PW16 was not at all shaken in his cross-examination. In fact, the fact that such a statement was recorded by PSI John Fernandes, in the presence of the Doctor, when the deceased was in a fit condition of mind and that the deceased had stated that she was assaulted by the accused, with the help of a knife, had not at all been denied, in the cross-examination of PW16. Hence, merely because, the police officer, who recorded the said statement had not been examined by the prosecution, could not make it unreliable. This dying declaration established that the accused had assaulted Samiksha by means of knife.
28. The injured was admitted in ward no. 109 of Goa Medical College,Bambolim. The Joint Mamlatdar-II and Executive Magistrate of Mormugao was called upon to record dying declaration of the deceased. The said request letter is a part of Exhibit 29-colly. PW9, Shri Brijesh Manerkar, the Joint Mamlatdar-II and Executive Magistrate, Mormugao, came to Goa Medical College Hospital on 02/12/2009 at around 3.00 p.m. and made a letter to the Ward In-charge to provide medical fitness certificate of the patient Rupa alias Samiksha Shetye. The said letter is at Exhibit-30. He deposed that on the said letter Dr. M. Shashi Dhar (PW16) endorsed that the patient was conscious, oriented to time, place and person and hence fit to give her statement. The endorsement was made on Exhibit 30. PW9 deposed that he recorded the statement of Samiksha Shetye in question and answer form and obtained her thumb impression on the last page and also the signature of Dr. Shashi Dhar. The said statement of Rupa alias Samiksha along with the forwarding letter is at Exhibit-31 (colly). In his cross-examination, PW-9 deposed that he did not record in Konkani the exact words stated by Rupa, regarding the fact that her husband stabbed her with a knife in her stomach. PW9 stated that Dr M. Shashidaran had taken him near the patient and identified her to be Rupa Shetye and had remained near him when he was recording the statement. He had asked the two relatives and the PSI to leave the said ward and only thereafter he recorded the statement. He further deposed in the cross-examination that when he asked the patient as to why her husband had stabbed her with a knife she stated that for the last few days he was not in good sense of mind and was not talking well. In the statement, the deceased had stated that at the time of incident, she and her husband were in the home and the house was locked from inside and after she shouted for help, neighbours broke open the door. PW9 denied the suggestion that the patient did not state that besides herself and her husband, nobody else was present in the house on the night of the incident. He denied the suggestion that Rupa did not state to him that on 01/12/2009 at 10.30 p.m., her husband stabbed her with a knife and besides herself and her husband, nobody else was present in the house on that night of the incident. He also denied the suggestion that she had not stated to PW9 that the house was locked from inside and she had shouted for help from her neighbours and neighbours broke open the door. The fact, as deposed to by PW9, that Dr. M. Shashidaran had certified and endorsed on the letter Exhibit 30 that the patient was conscious, oriented to person, place and time and was fit to give statement and that the said doctor was present near him when he was recording the statement of Rupa, had not been denied by the accused. The deposition of PW9 was in consonance with the dying declaration which is part of Exhibit -31(colly).
29. From the above dying declarations, it was fully established that at the relevant time, the accused and his wife Samiksha were the only persons present in their bedroom and the door was latched from inside and the accused stabbed his wife with knife on her stomach and thus caused dangerous injuries to her. These dying declarations had the support of the other circumstantial evidence of PW1, the father of the deceased; PW2, the brother of the deceased; PW6, the neighbour and the medical evidence, which has been already discussed earlier. It was therefore sufficiently proved beyond doubt that the accused caused the said dangerous injuries to his wife Samishka, on 01/12/2009, which ultimately resulted into her death on 06/09/2010. The second point for determination therefore gets answered in the affirmative.
30. The third point that arises for determination is whether the accused is entitled for benefit of Section 84 of I.P.C.
31. Section 84 of I.P.C. provides that 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 he is doing what is wrong or contrary to law. The Cr.P.C. nowhere defines the expression âunsoundness of mindâ. But it is clear from the provision of Section 84 of I.P.C. that the person, to be taken as of unsound mind, should be incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. Every case of insanity is not covered by Section 84 of I.P.C.. Along with the insanity, there must be additional fact that at the time of commission of the act, he was, on account of the said unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. Thus, the exemption is restricted to cases where the cognitive features are completely impaired and not to cases where the insanity affects only the emotion and the will. Lastly and most importantly, the crucial point of time under Section 84, at which the insanity of the accused in the sense of the section must have existed, is the time when the alleged offence was committed by the accused. The absence of motive is not by itself proof of insanity on the part of the accused. However, the same may be taken along with other circumstances as a relevant factor in determining the question of sanity or insanity of the accused, for the purpose of section 84 of I.P.C..
32. In the case of âDahyabhai Chhaganbhai Thakkerâ (supra), the Hon'ble Supreme Court has laid down following propositions:
(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 rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of I.P.C.: 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. In the case of âTamil Nadu Lakshmaiahâ (supra), the Apex Court has observed that under the Evidence Act, the onus of proving any of the exceptions mentioned in Chapter IV dealing with general exceptions, lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It has been held that it is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
33. A suggestion was put to PW1, the father of the deceased, that the accused is not sound in mind. Another suggestion was put to him that he had been called by his daughter to reside with them from 17/11/2009, as the accused was not mentally sound. The above suggestions were denied by PW1. No suggestion was put to PW1 that as on the date of incidence and at the relevant time the accused was not in a sound state of mind. The testimony of PW2, the brother of the deceased, was recorded on 20/04/2010. A suggestion was put to PW2, that since last 6 months the accused had not been in a sound state of mind. PW2 denied this suggestion. To the suggestion that the accused was not mentally sound since the year 2007, PW6 categorically, answered that he knew the accused to be a mentally sound person. PW17 deposed that the accused was physically fit. No suggestion was put to her that the accused was at any time mentally ill. PW18, Mrs. Manda Shetye, a relative of the accused, denied the suggestion that the accused was repeatedly suffering from mental sickness. She specifically stated that the accused was in good mental condition. The accused has a brother by name Satish. Said satish or any other relative, if any, has not been examined by the accused. No medical evidence to prove the mental illness was produced by the accused.
34. The evidence of PW14, Dr. Mary C. D'Souza, the lecturer In IPHB, Bambolim, reveals that as on 04/11/2010, with regard to the accused, there was only a provisional diagnosis of depression and psychological testing was not complete till 13/11/2010, which was the date of provisional Medical Report, Exhibit 53, given by PW14. The condition of the accused did not appear to be of schizophrenia. The accused therefore was stated to be not fit for trial. According to PW14, she could not get any information regarding the behaviour of the accused prior to the alleged crime. Therefore, there was no proved past history about mental illness of the accused. In his statement under Section 313 of Cr.P.C., the accused stated that he was not mentally fit prior to the incident. The crucial point of time under Section 84 of I.P.C., at which the insanity of the accused in the sense of the section must have existed, was not the time prior to the incident but the time when the alleged offence was committed by the accused. The accused did not produce any medical records. On the basis of the statement of the accused under Section 313 of Cr.P.C., to the effect that his medical records were in his house, the said house was searched and a panchanama in this regard was drawn by PW13 on 11/05/2012. But nothing to suggest that the accused had mental illness was found in the house. In the statement recorded by PSI John Fernandes, which is at Exhibit 66, the deceased stated that the accused is of unsound mind. In the statement recorded by PW9, the Executive Magistrate, which is a part of Exhibit 31-colly, what was stated by the deceased was that for the last two days, her husband was not in good sense of mind and was not talking well. The above, in our considered view, cannot, even by preponderance of evidence, in the absence of medical evidence, establish that at the crucial time of incident, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
35. The accused after stabbing his wife, in the bed room, remained sitting there with the knife and did not make any attempt to run away or to conceal the knife. However, this conduct of the accused was not sufficient to hold that the accused was of unsound mind at the time of incident. That might have shown his repentance. The evidence on record, otherwise, proved that the accused latched the door of the bed room of PW1 from outside. The evidence on record further proved that the accused locked the main door of the house from inside and kept the key in the pocket of his pant and also latched the back door of the house. The accused, therefore, had taken full care to see that no one could come to the rescue of his wife, Samiksha. In the case of âSheralli Wali Mohammedâ (supra), the Apex Court has observed that the mere fact that no motive has been proved why the accused murdered his wife and child or, the fact that he made no attempt to run away when the door was broke open, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offence. Thus, in the present case, the accused had one or the other kind of mens rea / intention as referred to in Section 299 of I.P.C. We are of the view that the accused is not entitled to benefit under Section 84 of I.P.C. The third point for determination is therefore, answered in the negative.
36. The trial Judge held that the prosecution failed to prove that the accused committed the offence of murder under Section 300 of I.P.C. But before giving benefit of Section 84 of I.P.C. to the accused, the Trial Judge did not decide as to which of the offence, if not murder, had been committed by the accused. Therefore, the matter needs to be remanded to the Trial Judge for reconsideration of the evidence on record and for hearing the learned Counsel for the parties and to pass an appropriate order of holding the accused guilty of a particular offence and convict him thereof and after hearing the parties on the point of sentence, to pass appropriate sentence.
37. In the result, we pass the following:
ORDER
(a) The appeal is partly allowed.
(b) The impugned Judgment and order of acquittal, by giving benefit of Section 84 of I.P.C., is quashed and set aside.
(c) The matter is remanded to the Trial Judge to reconsider the evidence on record, hear the learned Counsel for the parties and decide which of the offence, if not murder, has been committed by the accused and to hold him guilty and convict him thereof and after hearing the parties on the point of sentence, to impose appropriate sentence.
(d) Date for appearance before the Trial Court is not fixed as the accused has been remaining absent before this Court after remaining present in person for the last time on 03/04/2014. The Trial Judge to issue appropriate process to procure the attendance of the accused.