Mr. Caetan Figueiredo Vs. the State of Goa - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 9. to make a case of schizophrenic activity in the aforesaid actual background of the incident itself coupled with the state of drunkenness in which the accused was found, in our opinion, would clearly indicate that section 84 is not attracted. in our opinion, therefore, it is not made out that the investigating officer has failed in his duty in any manner. the evidence of the said victim to the crime is clearly enough to hold that the accused was enraged only by the fact that he was cornered about having drunk in the middle of the day. their evidence also corroborates each other and clearly indicates that the behaviour of the accused was not at all abnormal at the time of the incident.ordern.j. pandya, j.1. on 8-8-1994, at 2.00 p.m., at caora, the accused/appellant assaulted simao vaz, aged about 78 years, with 'kati' (chopper) and caused his death and on the same day, at the same time and at the same place, he also assaulted one livramenta vaz causing her serious injuries. case under section 302, i.p.c. as also section 307, i.p.c. came to be registered against the accused/appellant who faced trial vide sessions case no. 1 of 1995 in the court of learned sessions judge at panaji, north goa, vide judgment dated 4th june, 1997, the learned trial judge convicted the accused/appellant for offence under section 302 i.p.c.. he acquitted him of charge under section 307 i.p.c., but convicted him of offence under section 326 i.p.c. by way of sentence under section 302 i.p.c., life imprisonment is awarded with fine of rs. 500/-, in default, to undergo 6 months r.i. and for offence under section 326 i.p.c. it has been awarded 3 years r.i. and a fine of rs. 500/-, in default, to undergo 3 months r.i. both the substantive sentences are ordered to run concurrently.2. it seems that gradually before the trial court, case came to be developed on the basis of plea of insanity. however, this is found to be wanting in the statement of the accused under section 313 of cr.p.c. (pages 94 to 102 of the paper-book). the plea taken therein by the accused is that of total denial. he has gone to the extent of saying that the case has been simply foisted on him.3. no doubt, attempt on the part of the defence lawyer to bring the case within section 84 i.p.c. was called for because there was material on record indicating that soon after the incident when the accused was apprehended and before his conviction, the investigating officer had taken him to the goa medical college. doctors at goa medical college found that opinion of psychiatrist is required and, therefore, he was referred to the institute of psychiatry and human behaviour, goa. dr. kunkoliencar had examined him and then issued certificate.4. in the aforesaid background, the learned sessions judge felt that the doctor should be examined as court witness. he acceded to the request of the defence and summoned the doctor as court witness and he has been examined as such (pages 91 to 93 of the paper-book). with regard to the material question whether at the time of the incident the accused had lost control over his mind to the extent that he would not be aware of the consequences of his act nor was he able to form an intent, unfortunately nothing could be brought on record.5. the material evidence in this regard is certificate exhibit p.w. 19/b which was issued by the said dr. kunkoliencar. a pointed question was put by the court to the doctor as under:-'what led you to diagnose the case of the accused as chronic paranoid schizophrenia for the first time in exh. p.w. 19/b?' answer : 'that is because he was complaining of hearing of voices, suspiciousness and that people were making black magic.' this certificate is dated 2-1-1995.6. this is definitely at a different point of time when the date of occurrence is recalled which is 8-8-1994. whether the patient was put under observations, whether any treatment was meted out to him, whether there was material with the doctor to arrive at the aforesaid conclusion, there is nothing on record.7. with regard to the situation as on 8-8-1994, this very doctor having examined the accused, the court came to question him on that count and it has come on record at page 97 that at about 10.00 p.m. when the doctor saw the accused, he was completely intoxicated and was muttering to himself.8. the aforesaid injured woman (p.w. 4) appears to be material witness for the prosecution. in her evidence it has come that at the time of incident the accused was busy with the help of chopper cutting coconuts and shelling them. a question was put by her (p.w. 4) to the accused as to why he had taken alcohol. this enraged the accused and he chased the said woman with chopper in his hand and assaulted her. shouts raised by her brought out the deceased and he too was assaulted with fatal consequences by the accused.9. to make a case of schizophrenic activity in the aforesaid actual background of the incident itself coupled with the state of drunkenness in which the accused was found, in our opinion, would clearly indicate that section 84 is not attracted.10. learned advocate shri godinho appointed under the legal aid scheme to appear on behalf of the accused/appellant, made sincere efforts in this direction. he also tried to make out a case that the prosecution had made it impossible for the accused to get himself examined by competent doctors so that this mental state at the time of the incident or at least on the day of the incident would be brought on record, which alone would enable him to raise the plea of insanity.the record was examined from this angle. the deposition of investigating officer (p.w. 23) was read so were the deposition of the doctors.11. on the contrary, it appears that the moment the investigating officer found that the behaviour ol the accused was not normal, he was taken to goa medical college and from there he was taken to the aforesaid institute. thereafter, he was taken to judicial custody. in our opinion, therefore, it is not made out that the investigating officer has failed in his duty in any manner.12. two judgments were relied upon by the learned advocate shri godinho. one is of this very high court, in govind ramchandra jadhav v. the state of maharashtra 1997 bom.c.r. 241 : 1997 all m.r. 456 where the accused was found to be kept under observation of six and half years during which time he was found to be insane. there was, therefore, sufficient material that he was mentally unstable before and after the incident. this is not the position here. the second judg-ment is of the apex court in state of punjab v. mohinder singh, : (1983)2scc274 . in that case the accused was examined before and after the occurrence by two doctors. these two doctors corroborated each other and on that basis it was found that the accused was schizophrenic. the behaviour of the accused was also found to be abnormal from the evidence on record.13. neither we have such medical evidence nor would the remaining record support the case of defence. if anything, it is to the contrary. the evidence of the said victim to the crime is clearly enough to hold that the accused was enraged only by the fact that he was cornered about having drunk in the middle of the day. otherwise he was indulging in normal activity of chopping the coconuts and shelling them. there is nothing abnormal in it.14. it is needless to say that there are eye witnesses to the incident as the incident has taken place in the middle of the day near the residence of the deceased and the accused. their evidence also corroborates each other and clearly indicates that the behaviour of the accused was not at all abnormal at the time of the incident.15. in our opinion, therefore, the finding of the guilt arrived at by the trial court is not required to be interfered with. the appeal is, therefore, dismissed.16. appeal dismissed.

Judgment:
ORDER

N.J. Pandya, J.

1. On 8-8-1994, at 2.00 p.m., at Caora, the accused/appellant assaulted Simao Vaz, aged about 78 years, with 'Kati' (chopper) and caused his death and on the same day, at the same time and at the same place, he also assaulted one Livramenta Vaz causing her serious injuries. Case under section 302, I.P.C. as also section 307, I.P.C. came to be registered against the accused/appellant who faced trial vide Sessions Case No. 1 of 1995 in the Court of learned Sessions Judge at Panaji, North Goa, Vide Judgment dated 4th June, 1997, the learned trial Judge convicted the accused/appellant for offence under section 302 I.P.C.. He acquitted him of charge under section 307 I.P.C., but convicted him of offence under section 326 I.P.C. By way of sentence under section 302 I.P.C., life imprisonment is awarded with fine of Rs. 500/-, in default, to undergo 6 months R.I. and for offence under section 326 I.P.C. it has been awarded 3 years R.I. and a fine of Rs. 500/-, in default, to undergo 3 months R.I. Both the substantive sentences are ordered to run concurrently.

2. It seems that gradually before the trial Court, case came to be developed on the basis of plea of insanity. However, this is found to be wanting in the statement of the accused under section 313 of Cr.P.C. (pages 94 to 102 of the paper-book). The plea taken therein by the accused is that of total denial. He has gone to the extent of saying that the case has been simply foisted on him.

3. No doubt, attempt on the part of the defence lawyer to bring the case within section 84 I.P.C. was called for because there was material on record indicating that soon after the incident when the accused was apprehended and before his conviction, the Investigating Officer had taken him to the Goa Medical College. Doctors at Goa Medical College found that opinion of Psychiatrist is required and, therefore, he was referred to the Institute of Psychiatry and Human Behaviour, Goa. Dr. Kunkoliencar had examined him and then issued certificate.

4. In the aforesaid background, the learned Sessions Judge felt that the Doctor should be examined as Court witness. He acceded to the request of the defence and summoned the Doctor as Court witness and he has been examined as such (pages 91 to 93 of the paper-book). With regard to the material question whether at the time of the incident the accused had lost control over his mind to the extent that he would not be aware of the consequences of his act nor was he able to form an intent, unfortunately nothing could be brought on record.

5. The material evidence in this regard is Certificate Exhibit P.W. 19/B which was issued by the said Dr. Kunkoliencar. A pointed question was put by the Court to the Doctor as under:-

'What led you to diagnose the case of the accused as chronic paranoid schizophrenia for the first time in Exh. P.W. 19/B?'

Answer : 'That is because he was complaining of hearing of voices, suspiciousness and that people were making black magic.'

This certificate is dated 2-1-1995.

6. This is definitely at a different point of time when the date of occurrence is recalled which is 8-8-1994. Whether the patient was put under observations, whether any treatment was meted out to him, whether there was material with the Doctor to arrive at the aforesaid conclusion, there is nothing on record.

7. With regard to the situation as on 8-8-1994, this very Doctor having examined the accused, the Court came to question him on that count and it has come on record at page 97 that at about 10.00 p.m. when the Doctor saw the accused, he was completely intoxicated and was muttering to himself.

8. The aforesaid injured woman (P.W. 4) appears to be material witness for the prosecution. In her evidence it has come that at the time of incident the accused was busy with the help of chopper cutting coconuts and shelling them. A question was put by her (P.W. 4) to the accused as to why he had taken alcohol. This enraged the accused and he chased the said woman with chopper in his hand and assaulted her. Shouts raised by her brought out the deceased and he too was assaulted with fatal consequences by the accused.

9. To make a case of schizophrenic activity in the aforesaid actual background of the incident itself coupled with the state of drunkenness in which the accused was found, in our opinion, would clearly indicate that section 84 is not attracted.

10. Learned Advocate Shri Godinho appointed under the Legal Aid Scheme to appear on behalf of the accused/appellant, made sincere efforts in this direction. He also tried to make out a case that the prosecution had made it impossible for the accused to get himself examined by competent Doctors so that this mental state at the time of the incident or at least on the day of the incident would be brought on record, which alone would enable him to raise the plea of insanity.

The record was examined from this angle. The deposition of investigating Officer (P.W. 23) was read so were the deposition of the Doctors.

11. On the contrary, it appears that the moment the Investigating Officer found that the behaviour ol the accused was not normal, he was taken to Goa Medical College and from there he was taken to the aforesaid Institute. Thereafter, he was taken to judicial custody. In our opinion, therefore, it is not made out that the investigating Officer has failed in his duty in any manner.

12. Two Judgments were relied upon by the learned Advocate Shri Godinho. One is of this very High Court, in Govind Ramchandra Jadhav v. The State of Maharashtra 1997 Bom.C.R. 241 : 1997 All M.R. 456 where the accused was found to be kept under observation of six and half years during which time he was found to be insane. There was, therefore, sufficient material that he was mentally unstable before and after the incident. This is not the position here. The second Judg-ment is of the Apex Court in State of Punjab v. Mohinder Singh, : (1983)2SCC274 . In that case the accused was examined before and after the occurrence by two Doctors. These two Doctors corroborated each other and on that basis it was found that the accused was schizophrenic. The behaviour of the accused was also found to be abnormal from the evidence on record.

13. Neither we have such medical evidence nor would the remaining record support the case of defence. If anything, it is to the contrary. The evidence of the said victim to the crime is clearly enough to hold that the accused was enraged only by the fact that he was cornered about having drunk in the middle of the day. Otherwise he was indulging in normal activity of chopping the coconuts and shelling them. There is nothing abnormal in it.

14. It is needless to say that there are eye witnesses to the incident as the incident has taken place in the middle of the day near the residence of the deceased and the accused. Their evidence also corroborates each other and clearly indicates that the behaviour of the accused was not at all abnormal at the time of the incident.

15. In our opinion, therefore, the finding of the guilt arrived at by the trial Court is not required to be interfered with. The Appeal is, therefore, dismissed.

16. Appeal dismissed.