Raghu Pradhan Vs. State of Orissa - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2. prosecution case in brief, is that the accused was working as a labourer and was residing with his wife sambari (deceased), son dambaru (deceased), daughter mini (deceased) and another smart daughter at village subalpur under pipili police station in the district of puri. there is, however, circum- stantial evidence which clearly indicates that the accused, the three deceased persons and another small minor daughter were the sole occupants of the house at the time when groaning sound of the deceased daughter and sound of assaults had been heard from inside the house of the accused by pw 1. further, pw 2 heard pw 1 shouting from the house of the accused that he was being assaulted by the accused. after considering all the evidence on record, we find that findings of the learned trial judge are well founded and cannot be assailed. the plea of insanity was negativeted by the learned trial judge on the ground that the appellant had failed to prove that he was insane at the time when he killed his wife and children and assaulted pw 1 and pw 16. 6. mr. after discussing evidence it was observed :13. it would clearly appear from the evidence of the prosecution witnesses and the discharge certificate that prior to the occurrence the appellant was becoming insane periodically and during that period he was assaulting persons at random for which he was being treated medically. pw 12, the brother-in-law of the appellant has deposed that his sister and her husband (appellant) were pulling on well which proves that there was absence of motive for commission of such crime. pw 2 has categorically deposed that at the proximity time of occurrence the accused was behaving like a mad man. the facts, evidence and circumstances, indicated above would clearly make out a case of legal insanity as provided in section 84 of the code.a.k. padhi, j.1. appellant faced his trial under sections 402, 323 and 332, indian penal code (hereinafter referred as 'the code') for committing murder of his wife and two minor children, for assaulting the assistant sub-inspector of police while on duty and one rajhu pradhan (pw 1). additional sessions judge has convicted him under sections 302. 332 and 323 of the code .and has sentenced him to undergo imprisonment for life under section 302, of the code and rigorous imprisonment for there months and one month under sections 332 and 323 of the code, respectively, directing all the sentences to run concurrently. the present appeal has been filed challenging the same.2. prosecution case in brief, is that the accused was working as a labourer and was residing with his wife sambari (deceased), son dambaru (deceased), daughter mini (deceased) and another smart daughter at village subalpur under pipili police station in the district of puri. pw 1 (raghunath pradhan) is a distant relation of the accused and his house is situated close by. in the mid-night of 16/17-7-1988 hearing groaning sound from the house of the accused pw 1 went there. when he reached near the house of the accused, he heard mini (deceased minor daughter of the accused) shouting from inside that her father was assaulting her, pw 1 asked her to come out by opening the door. when mini was trying to open the door, pw 1 heard a sound of assault and then a groaning sound from inside. when raghu questioned him as to why he was assaulting his daughter, the accused rushed and assaulted him by means of a crow bar as a result of which he fell down senseless. subsequently, being informed regarding the incident by pw 2 (father of pw 1), a. s, i. bharat pradhan of satasankha out. post rushed to the spot along with some constables and found the accused moving restlessly in a violent mood inside the house with a crow bar in his hand. when attempt was made by the a. s. i. to apprehend the accused, he ran towards him and also attempted to assault him by the crow bar. the a. s.i. overpowered him and tied him by a rope and took him to custody. the a. s. i. suffered minor injuries during the tussle. entering inside, he found that wife of the accused, his minor son named dambaru and his minor daughter named mini were lying dead inside the house. raghu pradhan (pw 1) was lying injured outside.3. plea of the accused was that of a total denial.4. actual commission of the murder of the three deceased persons has not been witnessed by anyone. there is, however, circum- stantial evidence which clearly indicates that the accused, the three deceased persons and another small minor daughter were the sole occupants of the house at the time when groaning sound of the deceased daughter and sound of assaults had been heard from inside the house of the accused by pw 1. further, pw 2 heard pw 1 shouting from the house of the accused that he was being assaulted by the accused. when the a. s. s. came to the spot with some constables, he found the accused in violent mood inside the house where the dead bodies were lying relying on above evidence and considering the facts and circumstances, learned trial judge has held that accused was the author of the crime and the death of deceased persons were homicidal. learned additional sessions judge further found that pw 1 and the a. s. i. were assaulted during the occurrence. it is not disputed at the bar that the death of the deceased persons were homicidal and pws 1 and 16 received injuries during the occurrence. after considering all the evidence on record, we find that findings of the learned trial judge are well founded and cannot be assailed.5. at the trial, a plea of insanity was raised and it was contended that from the evidence on record it was clear that the appellant was mentally deranged for some time in the past, was insane at the time of occurrence and continued to be deranged after the incident and the acts of the appellant on the date of occurrence would come within the purview of section 84 of the code. the plea of insanity was negativeted by the learned trial judge on the ground that the appellant had failed to prove that he was insane at the time when he killed his wife and children and assaulted pw 1 and pw 16.6. mr. tapan mohanty, appearing for the appellant invited our attention to the relevant portions of the evidence of the prosecution witnesses and contended that from the evidence on record it is apparent that the appellant was fnsane at the time of commission of the acts which resulted in the death of his wife and two children and, therefore, his acts come under exception i. e. section 84 of the code. learned counsel for the state, on the other hand, contended that though the appellant might have behaved in an insare manner before and after commission of the offence, from the evidence of the prosecution witnesses who were with the appellant at the proximity of time of the commission of the acts, insanity of the appellant at the time of occurrence has not been proved.7. in order to get the protection of section 84 of the code, it is to be proved that at the point of time of commission of the offence, the appellant was insane to the extent that he was incapable of knowing the nature of the act he was committing. ordinarily, a person is responsible for the act committed by him. there are, however, some exceptions to this general rule. one of the exceptions is section 84 of the code, when it is established that the accused who committed the crime.(i) was of unsound mind at the time of commission of the crime ; and(ii) as a result thereof, he was incapable of understanding the nature of the act he committed or that he was doing a a wrongful act, he is entitled to the protection under section 84 of the code.7. exception in section 84 of the code is based on the principle that in order to constitute 'crime, the act. should have been committed with 'guilty' intention, and if the doer of the act not knowing the nature of the act of the wrongfulness of the act or the illegality of the act committed the same, he cannot be held responsible for it. is very pertinent that it has to be proved that unsoundness of mind was to such an extent at the time of commission of the offence that the doer of the act could not know the nature of the act he was committing. according to section 84 of the code, 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 either wrong or contrary to law.8. while analysing the scope and ambit of section 84 of the code in the oft-quoted decision (danyabhat v. state of gujarat) air 1964 sc 1563 k. subba rao. j. speaking for the court observed :'when a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence 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. the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. whether the accused was in such a state of mind as to be entitled to the benefit of section 84 of the indian penal code can only be established from the circumstances which preceded, attended and followed the crime.'9. the same principles have been raiterated and followed by the apex court in air 1966 sc 1 (bhikari v. she state of uttar pradesh), air 1971 sc 778 (rataan lal v. the state of madhya pradesh) and air 1974 sc 216 (oyami ayatu v. the state of madhya pradesh).10. however, in air 1977 sc 608 (amrit bhushan gupta v. union of india and ors. ) and 1981 scc (crl) 516 (paras ram and ors. v. state of punjab), it has been held that unless the court comes to the conclusion that the accused was insane at the point of time he committed the offence he cannot be absolved of the responsibility of the offence even if it is found by the court that he was insane either earlier or in the later point of time of the commission of offence.in a decision of the division bench reported in 1985 (ii) olr 398 (butu @ madhu oram v. state) one of us s. c. mohapatra, j. speaking for the court has expressed that accused is not to be called upon to prove the ingredients of section 84, ipc beyond reasonable doubt in order to get an acquita), though the burden lies on the accused to prove his insanity at the time of occurrence and it will be sufficient if the materials on record lead to an inference that the requirements of sec 84, ipc may be reasonably probable. such an inference can be drawn from materials on record, past history of the accused, conduct of the accused during the occurrence and thereafter. absence of motive though sine qua non, is a relevant factor for consideration.11. in shama tudu v. state (1986) (i) olr 506, behera, j. speaking for the court observed that it is not every person suffering from mental disease who can avoid responsibility for a crime by invoking the plea of insanity. while explaining what is a legal insanity' his lordship opined that a person whose cognitive faculties are so impaired as to make it impossible for him to know the nature of his act or that what he was doing was wrong or contrary to law, is exempted from criminal responsibility and come within the purview of 'legal insanity'.according to us the circumstances from which inference can be drawn regarding mental condition of the accused at the time of commission of the act are :(a) motive :(b) deliberation and preparation;(c) desire for concealment ;(d) conduct after commission of the crime showing consciousness of guilt and effect to avoid detection ;(e) offer of excuse or making statements which are false; and (f) conduct before, at the time and after the commission of offence.after discussing evidence it was observed :13. it would clearly appear from the evidence of the prosecution witnesses and the discharge certificate that prior to the occurrence the appellant was becoming insane periodically and during that period he was assaulting persons at random for which he was being treated medically. pw 12, the brother-in-law of the appellant has deposed that his sister and her husband (appellant) were pulling on well which proves that there was absence of motive for commission of such crime. pw 2 has categorically deposed that at the proximity time of occurrence the accused was behaving like a mad man. the evidence of the a. s. i. (pw 16) discloses that immediately after the occurrence when he reached the place the accused was in a violent mood. accused was sent for medical examination as his behaviour was abnormal. the opinion of the doctor (pw 19), ext-a, the medical report and opinion of d. w. 1 proves that immediately after the occurrence there was contusion in the brain of the accused which is one of the symptoms of insanity.14. after considering all the materials on record, we come to the conclusion that when the appellant committed the offence, he was not in a position to understand the nature of his act owing to insanity at the crucial point of time. the facts, evidence and circumstances, indicated above would clearly make out a case of legal insanity as provided in section 84 of the code.15. for the above reasons in our opinion, the finding of the trial court that the plea of insanity was not available to the appellant, is; not correct, legally the accused is entitled to protection in terms of section 4 of the code. he is, therefore, to be acquitted and set at liberty.16. before closing we cannot but observe an insane person when turns violent is a danger to the society, and therefore, becomes a liability to the society and the state. from the evidence of the witnesses we find that accused used to suffer from insanity periodically during which period was behaving violently. if law makers wanted to give to protection for his mental ailments, it is certainly a social obligation to see that he is cured and he does not continue to be a source of danger to the society. it will be, therefore, appropriate if the state government makes arrangements for his treatment in accordance with law if it is found that he is continuing to be mentally imbalanced.17. in result, appeal is allowed. conviction and sentence under sections 302, 332 and 323, indian penal code are set aside.s.c. mohapatra, j.18. i agree.