Niman Sha Vs. State of M.P. - Court Judgment

R.P. Awasthy, J.

1. IInd Additional Sessions Judge, Chhindwara, Shri A. K. Patel, has made these joint references pertaining to Sessions Trials Nos. 46 and 47 of 1995, in which accused Niman Sha was charged with having committed, on or about 6-12-1994, murders of Nanjo Bai and Jhini Bai at village Dhalapthar and Karanpiparia, and thereby committing offences punishable under sections 302 and 302, of the Indian Penal Code. In both of the said Sessions Trials the accused has been held guilty for committing the said offences and the present references have been made under section 366, of the Criminal Procedure Code, for confirming the death sentence recommended to be awarded to the accused appellant. The accused has also filed two appeals against the said judgments, delivered in Sessions Trials referred above, of holding him guilty for committing offences punishable under section 302 and 302, of the Indian Penal Code, and recommending to sentence him to death. The said references, made under section 366, Criminal Procedure Code and Criminal Appeals referred above shall be decided simultaneously, by this single judgment.

2. From the documents filed in the trial Court, the prosecution case emerges as below :-

Niman Sha is the eldest son of Raman Sha. After getting up in the morning, he all of a sudden ran away from his house. Raman Sha followed him. Raman Sha met him just below the hillock, and after apprehending him, Raman Sha was taking Niman Sha back to his house. At that time, accused/appellant Niman Sha was having an axe. When, while returning towards their house, Raman Sha and his son accused/appellant Niman Sha, reached a rivulet and were crossing it, the accused started quarrelling with his father Raman Sha. He threatened to cause hurt to Raman Sha. At that time Nanjo Bai (since deceased) was harvesting 'kutki' crop near the said rivulet of village Dhalapathar. When Niman Sha started quarrelling with his father and adopted an aggressive attitude, Nanjo Bai tried to pacify the accused by saying as to why he was not paying heed to what his father was saying.

3. Thereafter, the accused/appellant went along with his father upto some distance. There, all of a sudden, Niman Sha pushed Raman Sha aside and taking the axe in his hand, he reached the place where Nanjo Bai was cutting 'kutki' crop and started dealing blows by means of the said axe on the neck of Nanjo Bai. The accused severed the neck and head from the remaining part of the body of Nanjo Bai, thereby causing her instantaneous death on the place of the incident itself. The said incident was witnessed by Gullo Bai (PW-4), who told the said fact to Balbati (PW-3). The accused went away from the first place of the incident, that is rivulet of Dhalapathar, and proceeded towards village Karanpiparia. On reaching Karanpiparia, the accused dealt axe blows on the person of yet another old lady, Jhini Bai and cut her like a fire-wood. The neck and head of Jhini Bai was also severed from her body, by the accused, causing her instantaneous death, on the place of the incident itself.

4. Thereafter the news that Niman Sha had chopped the heads of Nanjo Bai and Jhini Bai spread in villages Dhalapathar and Karanpiparia, and other adjoining very small villages, consisting of few hutments only. On receiving the said information Champalal, Dashrath, Lakhan, Chamru, Raman and other persons got collected and apprehended the accused. At that time the accused had thrown the axe away. On being asked as to where he had thrown the said axe, the accused told Champalal the place where he had thrown the said axe. Champalal brought the said axe.

5. All of the said persons tied the accused with a tree by means of a rope, at Dhalapathar (Kharakala) . On the same day, at about 8.05 PM, Champalal went to police station Junnardeo, where he lodged the FIR (Ex. P-3). After recording the said FIR, Shri Akhil Verma (PW-5), reached the place of the incident. As it had already gone dark in the night, he started investigation from the next date. On 7-12-1994, usual death inquests pertaining to the dead bodies of Nanjo Bai and Jhini Bai were conducted by Shri Akhil Verma. The said dead bodies were sent for post mortem examination to Primary Health Centre, Junnardeo for autopsy being conducted. On conducting post mortem examination on the said two dead bodies, Dr. R. K. Gupta, Asstt. Surgeon, found multiple incised injuries on the bodies of Nanjo Bai and Jhini Bai. In the opinion of Dr. Gupta, all of the said injuries were ante mortem in nature and the injuries found on the neck of both of the said ladies caused their death. Obviously, the said injuries were sufficient in the ordinary course of nature to cause their death.

6. Shri Akhil Verma seized the axe, on it being produced by Champalal (PW-2). There were blood stains on the said axe. After examining the said axe, Dr. Gupta opined that the injuries found on the bodies of the said two ladies could have been caused by the said axe.

7. The clothes, which the accused/appellant was wearing at the time of the incident, were got removed from his person and were seized as per seizure memo, Ex.P.-11. Apart from it, blood stained and plain earth were also seized from both places of the incident.

8. On charges being framed and explained, the accused denied the said allegations and submitted that he had absolutely no knowledge, or idea about the incident. He did not know as to why he had been apprehended by the Police. He has also stated that someone had practised black magic on him and that his mental condition was not in order.

9. After recording evidence in the case, the trial Court held the accused guilty of committing gruesome murders of the said two ladies, in a very cruel manner. The trial Court has recommended that since there was absolutely no reason to kill the said two ladies, the accused deserves to be sentenced to death.

10. During the course of trial, a sort of enquiry was made by the learned Additional Sessions Judge, regarding the mental condition of the accused. The learned Additional Sessions Judge ordered on 29-7-1995, that looking to the defence taken by the accused, it appears necessary to inquire from Chief Judicial Officer, Chhindwara and Jailor, District Jail, Chhindwara as to whether the accused had behaved like a person of unsound mind during the period in which he was confined in jail. It was also inquired that if the accused was behaving like an insane person, what action was taken by the Jailor in this regard. Thereafter Shri R. S. Mishra and Dr. Shri Vilas Pethe were examined as court-witnesses, in connection with the said inquiry.

11. Jailor, R. S. Mishra, deposed that he had seen abnormal behaviour of the accused on third or fourth of January, 1995. Thereupon he had sent a letter (Ex.P-13/A) to Chief Judicial Magistrate, Shri Ajit Singh. Along with the said letter a report of medical examination of the accused was also sent. The letter was received in the Court of Chief Judicial Magistrate, Shri Ajit Singh, of which the acknowledgment is Ex.P-13/A. Shri R. S. Mishra has further deposed that a separate register is maintained in the jail regarding the treatment given to a mental patient. From the deposition of Shri Mishra, which has been recorded in the said Court, it appears that the photo-copy of the said register was exhibited, probably as Ex.P-17, a photo-copy of a register which has been filed along with the present appeal and which is a photo-copy of a register, of letters issued, does not bear any exhibit marks.

12. Dr. Vilas Pethe, court-witness No. 2, has deposed that he had medically examined the accused on 6-1-1995 and had given a report, which was purportedly exhibited as Ex.P-14. However, the said document bearing exhibit mark as Ex.P-14 is not available on the record of the case. (This goes to indicate as to in how careless manner the record of a case, in which reference under section 366, Criminal Procedure Code has been made, for confirmation of sentence of death, was kept in the trial Court. In the deposition sheets, exhibit marks of the said sheets have been referred, but the documents bearing the said exhibit marks are not available on the record.)

13. As the case may be, Dr. Vilas Pethe has deposed that he had medically examined the accused on 9-1-1995, 15-1-1995 and 19-1-1995, and had found the mental condition of the accused/appellant similar to the mental condition, which he had found on 6-1-1995. Thereupon he consulted Dr. Pandit and Dr. Pandit also medically examined Niman Sha. Dr. Pandit recommended that the accused should be sent to Mental Hospital, Gwalior (for his medical treatment).

14. Now, one letter which does not bear any exhibit mark is contained in the record of Sessions Trial No. 46/95, which bears the seal and purported signature of the Jailor. This letter is dated 23-1-1995. In this letter, it is mentioned that the accused be permitted to be sent to Central Jail, Gwalior, so that he may be got treated at Mental Hospital, Gwalior. Along with the said letter, a medical report dated 20-1-1995 is also annexed. After noting symptoms of the accused/appellant, the Medical Specialist and the Jail Doctor had opined that the accused should be sent to Mental Hospital, Gwalior for his medical treatment.

15. In spite of the receipt of the said letter, in the Court of Chief Judicial Magistrate, Chhindwara, no steps were or, could be taken either for taking the accused to Mental Hospital, Gwalior or to adopt the procedure, which is enumerated in sections 328, 329 and 330 of the Criminal Procedure Code. Only on the defence being taken for the accused that he was a lunatic at the time of the incident, the learned trial Judge on 29-7-1995, that is after seven months and a half, convened a sort of enquiry into the matter, which revealed that after medical examination of the accused, it was advised that he should be sent to Mental Hospital, Gwalior, for his medical treatment. However, he was never sent to the said Mental Hospital. The record of the case also reveals that on 3-8-1995, an application was moved for examining certain relatives of the accused, on the point of the accused being of unsound mind. It was suggested by the Court that the said relatives can be examined by him, in his defence. Thereafter it seems that none of his relatives were examined to indicate the mental condition of the accused at the time of, or just prior, or subsequent to the date of the incident.

16. From the testimony given by Gullo Bai (PW-4), corroborated by the statements given by Balbati (PW-3) and Champalal (PW-2), it is fully established that the accused committed murder of Nanjo Bai; aged about 60 years (S.T. No. 47/95). From the testimony given by Sukhti Bai (PW-4) and Balram (PW-5), it is fully established that the accused committed murder of Jhini Bai, aged about 40 years (S.T No. 46/95). The testimony given by the said witnesses finds support by the testimony given by Dr. R. K. Gupta, Asstt. Surgeon, Primary Health Centre, Junnardeo. On the basis of the said testimony available on record, it is held that it is fully established, beyond any reasonable doubt, that it was the accused and the accused alone, who had committed murders of Nanjo Bai and Jhini Bai.

17. The only point for determination in the present case is as to whether the accused could establish, as is required, under section 84, of the Indian Penal Code, read with section 105 of the Evidence Act, that he was suffering from legal insanity at the time of the incident, that is to say that by reason of unsoundness of mind, he was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law and, therefore, the criminal act committed by him would come within the ambit of general exception contained in section 84 of the Indian Penal Code. In 1983 Cr.L.J. 1769, Baluganpat Koshire v. State of Maharashtra, it was observed pertaining to the procedure to be followed when it comes or is brought to the notice of the Court, that due to unsoundness of the mind an accused is incapable of making his defence. In the above mentioned authority, it has been observed in para No. 7, as below :-

'7. Under section 329, Criminal Procedure Code, if at the trial of any person it appears to the Court that such person is of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, '.....try the fact of such unsoundness and incapacity'. Record here does not indicate compliance with this mandatory provision. All that happened was that the trial Court did take a prima facie view in favour of the accused and did postpone the trial pending his medical examination. But after medical examination, the trial Court did not try the fact of the purported unsoundness and incapacity of the accused, did not record finding as to his mental condition and defending capacity and without fulfilling this initial obligation forthwith resumed and concluded the trial on the main charge itself. The resulting lacuna was not innocuous but vital. Under sub-section (2) of section 329, Criminal Procedure Code, the trial of the fact of unsoundness of mind and incapacity of the accused - '.... shall be deemed to be a part of his trial before the Court'. Sequittur follows that the requisite trial under section 329, Criminal Procedure Code, was in this case not held at all. All that happened, if one may say so, was mere collection of receipt of evidence or material. But pursuant thereto no trial took place on the basic fact of unsoundness and incapacity of the accused. This vital lacuna would vitiate the trial. The doubt regarding the unsoundness and incapacity of the accused to defend himself at the main trial must per force continue to linger on, in the process rendering the validity of the further proceedings in the trial also doubtful. Taking this to its logical conclusion, the instant trial would be no trial in the eyes of the law or, putting it differently, a void trial. It is, however, not necessary to go to that extent in the instant appeal because even on the assumption that the trial was valid, the accused here, on merits, established his claim to protection under section 84, Penal Code, and consequently to an order of acquittal.'

18. In the present case also, it seems that the Jailor of the jail concerned treated his duty as full and complete only after writing a letter. He did not inquire from the Court concerned, as to whether the said letter was kept before the Magistrate concerned or not, and if so what order was passed on the said request of sending the accused to Mental Hospital, Gwalior, for his medical treatment. In the present case, the accused was an aboriginal living in a very remote village, in an interior place. There is a scope for the probability, that had the accused been a well off person, such a callous attitude might not have been adopted by the Jail Authorities, and they would have normally enquired about the fact as to whether the said application was or was not kept before the Presiding Officer of the Court, to whom the said application was addressed. Had the said inquiry been made, it could have been verified as to whether the Reader of the Court had or had not placed the said application before the Magistrate concerned, and the Magistrate concerned could have been compelled to pass an order in writing, pertaining to the said petition.

19. As the case may be, in the present case as well, the procedure enumerated in section 329, Criminal Procedure Code, could not be adopted. Therefore, it could not be ascertained as to what was the mental condition of the accused, after the commission of the said crime.

20. It also appears that the prosecuting agency was also not fair in the matter of investigation of the case. Diary statements of the father of the accused were recorded. Case diary, which is available in this case, goes to indicate that the father of the accused/appellant had informed that the accused occasionally suffers from the attacks of mental disorder, In spite of getting this information on 9-12-1994, and recording it in the case diary in page (or parcha) No. 4, the Investigating Officer did not consider it necessary to get the accused medically examined, regarding his mental health. (Please see case diary of Police Station, Junnardeo of Crime No. 448/95, at page No. 4). In the present case though diary statements of the father of the accused were recorded and he was a very material witness, regarding the present incident, yet he was not examined by the prosecution. Champalal (PW-2) had admitted in para No. 14 of his deposition, '... that when the accused was apprehended by them', the accused was saying that he is haunted by 'Badadev', and that is why he had stated in his diary statement (which ought to have been exhibited as Ex.P-3, but did not bear any exhibit mark), that on being apprehended by them, the accused said he was 'Badadev' and that he had cut both of the said ladies.

21. It is true that merely because the crime committed is ghastly and there appears to be no reason or motive for its commission, it would not, by itself, bring the case within the compass of the general exception contained in section 84 of the Indian Penal Code. Nevertheless it has to be seen in the present case that there was some previous history of the accused suffering from mental disorder. When he was apprehended soon after the incident, the accused was not behaving normally. During the period of investigation also, the accused suffered an attack of insanity. Now in this background it has to be seen that the accused committed murder of two old ladies, in a very cruel manner, without any reason or rhyme.

22. In 1990 Cr.L.J. 97, Elkari Shankari v. State of Andhra Pradesh, the facts of the case were as below. The accused, who was the father of the deceased, killed his son by inflicting stab wounds and danced shouting that he had killed his son and thereafter he threatened to kill the inmates of the house, holding the blood stained knife. Under the given circumstances, it was held that facts of the case go to establish that he did the said ghastly criminal act on account of unsoundness of mind, because he was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. In the same authority, in view of the provision contained in section 335, Criminal Procedure Code, the accused was ordered to be detained in mental asylum, till such time as he was cured of mental disease and was found to be mentally in a sound condition, by the Superintendent of the Institute of Mental Health, and was fit to be discharged from the hospital. Consequently, in view of the provision contained in section 334, Criminal Procedure Code, the finding is being given that the accused committed murder of two ladies by chopping their heads off their bodies, by means of an axe. However, he did the said ghastly criminal act by reason of unsoundness of mind on account of being incapable of knowing the nature of the act, as constituting the offence, or that it was wrong or contrary to law. Therefore, the said criminal act would come within the compass of general exception enumerated in section 84 of the Indian Penal Code and the accused is entitled to get benefit of section 84 of the Indian Penal Code.

23. Nevertheless, the second question would be as to where the accused should be detained in view of the provisions contained in section 335, Criminal Procedure Code. Looking to the circumstance, that on account of unsoundness of mind, the accused chopped the heads of two elderly ladies without any rhyme or reason whatsoever, it appears proper that an order should be passed that the accused should be detained in safe custody in some mental asylum, where the accused might be able to get some medical treatment for his mental disorder. In this regard, it has to be seen that an order under section 335(1)(a) can be passed only in accordance with the rules as the State Government may have made under the Indian Lunacy Act. Section 3 sub-section (4) of the Indian Lunacy Act defines 'criminal lunatic' as any person for whose detention in, or removal to an asylum, jail or other place of safe custody, an order has been made in accordance with the provisions of section 466 or 471 of the Criminal Procedure Code, or section 30 of the Prisoners Act, of 1900. Section 471 sub-section (1) of the Criminal Procedure Code, of 1898, corresponds to section 335, of the Criminal Procedure Code of 1973. Thus the accused comes within the definition of a 'criminal lunatic'. Section 24 of the Indian Lunacy Act, provides that an order under section 466 or 471 of Criminal Procedure Code, or section 30 of the Prisoners Act, or section 103A, of the Indian Army Act directing the reception of a criminal lunatic into any asylum, which is prescribed for the reception of criminal lunatics shall be sufficient authority for the reception and detention of any person in such asylum or in any other asylum to which he may be lawfully transferred. Section 27 of the Mental Health Act, of 1987, which is a corresponding provision in the new Act, is also to the same effect.

24. We, therefore, direct that the appellant shall be detained in Mental Hospital, or the Institute of Mental Health, Gwalior (M.P.) till such time as he is cured of his mental disease and is found to be mentally in a sound condition by the Dean, or the Superintendent of the said Institute of Mental Health, Gwalior and is found fit by the said authority to be discharged from the hospital.

25. In the result, the references are rejected in both of the said Sessions Trials. Both of the said appeals are allowed and it is held that the accused is entitled to benefit of section 84 of the Indian Penal Code. However, looking to the heinous criminal act committed by him, and his mental condition coupled with the hazards to the society, it is ordered under section 335(1)(a), of the Criminal Procedure Code, that the accused be detained in the said Institute of Mental Health, at Gwalior till the period he attains normalcy, after receiving medical treatment.