Table of Contents

Surju Marandi and Anothers versus The State of Bihar ...................................................... 2

Facts of the Case ............................................................................................................................. 2

Charges Framed................................................................................................................................ 5

Arguments............................................................................................................................................ 5

Decision of the Bench .................................................................................................................. 6

Recent Case Laws ............................................................................................................................... 14

State of Rajasthan versus Shera Ram @ Vishnu Dutta ................................................. 14

Ms. Leena Balkrishna Nair versus The State of Maharashtra ................................... 17

Bibliography ......................................................................................................................................... 22
 Page |1

Table Of Cases

Dahyabhai Chhaganbhai Thakkar v. State of Gujarat…………… 11

Eradu v. State of Hyderabad………………………………………………….… 9

Hanumant Govind Nargundkar v. State of Madhya Pradesh…… 8

Kamla Singh v. The State………………………………………………………… 11

Ms. Leena Balkrishna Nair v. The State of Maharashtra………… 17

Palvinder Kaur v. The State of Punjab…………………………………….. 8

Sarwan Singh Rattan Singh v. State of Punjab……………………… 10

State of Rajasthan v. Shera ram @ Vishnu Dutta…………………. 14

Surju Marandi and Anothers v. The State of Bihar………………... 2

 Page |2

SURJU MARANDI AND ANOTHERS – APPELLANTS

VERSUS

THE STATE OF BIHAR – RESPONDENT

(1977 Cr.L.J. 1765)

Facts Of The Case

The two appellants, namely, Surju Marandi and Rijha Marandi,

related as brothers, were tried by the 2nd Additional Sessions
Judge, Bhagalpur for committing the murder of their own youngest
brother Sukhu Marandi aged about 12 years only, have been
convicted under Section 302 of the Indian Penal Code and each of
them has been sentenced to rigorous imprisonment for life.

The occurrence of offence have taken place on the night of 14-

15th of March, 1968 in the house of the appellants in village
Chattarhan in the district of Bhagalpur, Mrs. Nuni Hunsda (P.W. 3),
mother of the appellants, lodged a report at the Belhar Police
Station on 15.3.1968 at about 10 P. M. stating that her eldest son,
namely, Surju Marandi (Appellant No.1) was suffering from insanity
since last 10 to 12 days and on that account she and other family
members including the wives of appellants and the deceased started
residing in the house of Karma Manjhi (P.W. 2) a co-villager and had
given up residing in their own house. Rijha Marandi (Appellant No.2)
her second son, was working in Bakula Colliery. He was called by
her by a telegram and had come to the village only two days before
the occurrence.

On the 14th March, 1968 appellant No.2 came to her and

asked Sukho to take the buffaloes to their own house and tie them
there saying that appellant Surju would not do any harm.
 Page |3

Thereupon Sukho went there with the buffaloes and remained there
in the night along with the two appellants. In the next morning i.e.
15th March, 1968 at about 6 A. M. P.W. 3 went to her house to call
her three sons but found that the door of the house was bolted from
inside and in spite of her repeated and loud calls, she did not
receive any response from inside the house. She kept waiting till
about 10 A. M. but having failed to receive any response, she went
to the neighbours and told them of the above facts. The neighbours,
however, suggested her to go to the police and accordingly she
went to Karmatarn and told the matter to P. W. 19 Lagan Mehra, a
constable, who met her. She returned to her village at about 4 P. M.
along with him. Some other prosecution witnesses, namely,
Lachman Hasda (P.W. 1) Tejo Modi (P.W. 4), Chhotan Marandi (P.W.
5) Jaipla Manihi (P.W. 7). Jesai Marandi (P.W. 10) and Mitan Pandit
(P.W. 14) also came there and then both the appellants opened the
door and came out of the room of the house. On being asked about
Sukho, appellant No. 1 is said to have stated that he had killed him.
It was further stated that he also pointed out a gunny bag
containing the dead body of Sukhu tied with a rope in the ceiling of
the room. P.W. 19 and other prosecution witnesses saw the dead
body. Some blood was also found in the court-yard which was
washed with cow-dung. P.W. 19 thereupon tied the appellant and
sent their mother (P.W. 3) along with P.W. 8 to the police station for
reporting the matter. She then lodged the first information report
before the Belhar police alleging that the appellants had killed her
son Sukho Marandi. Both the appellants were sent up for trial and
ultimately convicted as already said above.

The investigation in this case was conducted by Abdul

Razaque, the officer-in-charge of Belhar police station (P.W. 17)
who had reached the place of occurrence at about 8 A. M. on 16th
March, 1968. Having received the report of the occurrence from
P.W. 3, P.W. 17, he also found some blood marks in the angan and
also recovered one Farsa, one Gaita and one Rukhani from the
house which were said to contain some blood marks. He sent Sukho
to Banka hospital for post mortem examination, The post mortem
examination was held by Dr. B. K. Jha (P.W. 15) on 17.3.1968 at
 Page |4

about 8.30 P.M. in the Banka Sub-divisional Hospital and he found

the following ante mortem injuries on the dead body:-

"1. One lacerated injury on head affecting the parietals and

occipitals in an area of 6" x 4" with communicated (sic)
(communicated?) fractures of parietals and occipitals, with
prolapsed brain matter.

2. One clean-cut incised wound 4" x 2 " 1 " on neck.

3. One clean cut incised wound 3" x 1 " x joint cavity deep
with fracture, dislocation of distal end of humerus on right
elbow joint, centrally with prolapse of lower end of humerus
through the wound. It was a compound fracture dislocation.

4. One clean cut incised wound 2" x 1" joint cavity deep on
right wrist with fracture. It was also a compound fracture
dislocation.

5. One clean cut incised wound 2 " x 1" joint cavity deep on
left elbow joint end of left humerus. The wound was also a
compound fracture with dislocation.

6. A simple fracture, both radius and ulna, of left forearm.

7. One clean cut incised wound 3" x 1" joint cavity deep on
right ankle posteriorly.

8. One clean cut incised wound 2" x 1" joint cavity deep on left
ankle posteriorly.

9. One clean cut incised wound 6 " x 2 " abdominal cavity deep
from right hypochondrium to umbilicus, with prolapsed
stomach, small intestine, and large intestine with rent in small
intestine leading to contamination of abdominal cavity and
collection of blood clots."

According to his opinion injury Nos. 1 and 6 were caused by

hard blunt weapon, such as iron rod and the rest of the injuries
were caused by sharp cutting weapon, such as pharsa and rukhani,
and the death was caused due to shock and haemorrhage, as a
result of the above-mentioned multiple injuries which were sufficient
 Page |5

in ordinary course to cause death. He fixed the time of death within

72 hours from the time of his examination.

Both the appellants have filed the present appeal from the jail
against their conviction ordered by the Bhagalpur Sessions Judge.

Charges Framed

Both the appellants namely, Surju Marandi and Rijha Marandi,

had been charged for committing the murder of their own youngest
brother Sukhu Marandi under Section 302 of the Indian Penal Code,
1860.

Arguments

The defense of the appellants was the plea of innocence and

false implication. The further plea of appellant No.1 was that he was
insane at the time of the occurrence and, therefore, in any view of
the matter, he could not be convicted. Appellant No.2 further
pleaded as his defense that he was not in the village when the
deceased was killed and had come to the village only on the day
following the night of the occurrence.

From the facts stated above, it is was observed that there was
no eye witness of the occurrence in this case and both the
appellants have been convicted by the trial Court only on the basis
of some circumstances appearing against them. The circumstances
which were relied upon by the trial Court and were referred to are
these:-

1. Appellant No.2 had gone to the house of P.W. 2 and had

asked Sukho (the deceased) to come to their own house with
the buffaloes and the deceased had gone there with the
buffaloes and had slept along with the appellants in the same
room on the fateful night;
 Page |6

2. When the mother (P.W. 3) went in the morning to the

house, it was found bolted from inside and was not opened by
the appellants for several hours in spite of repeated and loud
calls until the police and some other neighbours assembled:

3. When ultimately appellant No.1 opened the door, both the

appellants came out of the house and when asked, appellant
No.1 is said to have admitted that he had killed Sukho and he
had pointed out the dead body of the deceased, which was
found hanging from the ceiling of the room in a gunny bag;
and,

4. Some blood marks were also found in the Angan of the

house.

It was contended on behalf of the prosecution that these

circumstances were sufficient to establish the guilt of the appellants.

Mrs. Sabitri Mishra, who appeared as amicus curiae for the

appellants, contended that the aforesaid circumstances had neither
been established nor they were such as could lead to the conclusion
that the murder of the deceased was committed by any of the
appellants. She further contended that appellant No.1 was insane
and was entitled to the benefit of the exception provided under
Section 84 of the Indian Penal Code, 1860. She also contended that
there was no motive for commission of the offence by appellant No.
2. Lastly, she contended that the trial was vitiated as the procedure
laid down under Section 465 of the old Code of Criminal Procedure
was not followed by the learned Additional Sessions Judge.

Decision Of The Bench

Hon’ble Justice C. S. Sinha and Justice H. L. Agrawal

constituting a double bench in Patna High Court, in the present
case, held that all the prosecution witnesses mentioned above have
admitted that appellant No. 1 had become insane, so much so that
Chhotan Marandi (P.W. 5), an uncle of the appellants, admitted that
 Page |7

appellant No.1 had become insane since about 4-5 days prior to the
occurrence and he used to threaten anyone who went near him.
Kaila Marandi (P.W. 12) stated that appellant No, 1 was kept under
fetters at the relevant time, a fact which is also admitted by P.W. 3.
The village chaukidar (P.W. 8) also stated that appellant No. 1 used
to assault the female members of the house and as such they had
been sleeping in the house of another person of the village. The fact
of insanity of appellant No. 1 has been admitted by each one of the
prosecution witnesses mentioned above, so much so that this fact
has been stated by P.W. 3 in her deposition itself. The degree of his
insanity can be well imagined from the fact that none of the female
members were prepared to live along with him, not even his wife,
and they had shifted to the house of a neighbour (P.W. 2). Appellant
No. 2 was called by P.W. 3 by a telegram only on this account. No
prosecution witness had seen the deceased or appellant No. 2
together or going inside the house, much less appellant No. 2 taking
the deceased with him in the preceding evening. None of the
prosecution witnesses had seen appellant No. 2 in the village until
the door of the room was opened on the next day in their presence.
In view of such state of evidence, the bench held that, the
prosecution has not established that appellant No. 2 was even
present in the village and had slept in the same house from which
the dead body of Sukho was recovered.

As regards the first circumstance that appellant No. 2 had

gone to his mother (P.W. 3), in the evening of the 14th March,
1968, there is merely the statement to this effect in the first
information report. In her evidence before the committing Court,
she did not make any such statement. There she only stated that
the appellant No. 2 and the deceased had also come before the
occurrence and in the night of the occurrence, all her three sons had
slept in a room of her house. In her evidence in the trial Court,
however, she did not support the above statement, and stated that
she could not say as to at what time the deceased had come from
village Basmata on the night of occurrence. She also contradicted
her earlier statement and stated that appellant No. 2 had come to
his village at 8 A. M. on 15th March, 1968 and that he was not in
the village on the night of the occurrence.
 Page |8

The fact that the appellants had come out of the room and
even assuming that they were also present when Sukho was killed,
would not necessarily establish that it was appellant No.2 who
committed the offence. P.W. 3, the mother, in her evidence at the
trial stated that appellant No. 2 was not present at that time in the
village and had come only the following morning. Even assuming
that she being the mother, retracted from her earlier statement that
he had already come to the village, in the absence of any other
incriminating circumstances appearing against him, particularly
when there could he no possible motive for him to kill his own
younger brother, especially when the mother (P.W. 3) says in her
evidence that the relation between all the three brothers was
cordial. The Bench said that they were not satisfied that this
circumstance, even if accepted, unerringly points towards the guilt
of appellant No.2 as the person responsible for the murder of the
deceased.

The Supreme Court quoted with approval the following

observations in two cases, namely, Palvinder Kaur v. The State of
Punjab 1 and Hanumant Govind Nargundkar v. State of Madhya
Pradesh2:-

"The mind was apt to take a pleasure in adapting

circumstances to one another, and even in straining
them a little, if need be, to force them to form parts of
one connected whole; and the more ingenious the mind
of the individual, the more likely was it, considering such
matters to overreach and mislead itself to supply some
little link that is wanting to take for granted some fact
consistent with its previous theories and necessary to
render them complete."

The Supreme Court in the above mentioned case observed

that in dealing with circumstantial evidence, the rules specially
applicable to such evidence must be borne in mind. In such cases
there was always the danger that conjectures or suspicion may take
place of legal proof, and, therefore, where the evidence is of a

1
AIR 1952 SC 354
2
AIR 1952 SC 345
 Page |9

circumstantial nature, the circumstances from which the conclusion

of guilt to be drawn should in the first instance be fully established,
and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as
to show that within all human probability the act must have been
done by the accused.

The Court, therefore, should safeguard itself against the

danger of basing its conclusion on suspicions however, strong they
may be.

The aforesaid view has been reiterated by the Supreme Court

successively in a large number of later decisions. In the case of
Eradu v. State of Hyderabad 3 , four persons were charged for
abducting one Muneem Lachiah and killing him thereafter due to
enmity, by hitting him with stick and spear. There was no eye-
witness in the case, but the accused were convicted only on
circumstantial evidence. There was evidence that the four accused
had gone to the house of the deceased in the evening of the day in
question and accosted him, asking him to accompany them to a
well, a fact duly established. The deceased was found hanging in the
backyard of his house. There was no evidence at all of any further
movement of the accused nor there was anything to connect them
with the crime, except the recoveries made at their instance, as
evidenced by the various documents. The motive alleged against the
accused was not satisfactorily established by the prosecution. The
Supreme Court set aside the judgment of conviction recorded by the
high court and the trial court on the ground that these
circumstances were not complete, without anything more to connect
the accused with the crime.

The court observed that the circumstance that appellant No. 2

remained in the house along with appellant No. 1 where the murder

3
AIR 1956 SC 316
 P a g e | 10

of the deceased is said to taken place and opened the door only
after several hours or insistence, may have various explanations. He
might be sleeping in another room of the house and be not even
aware of the death which might have been caused by the insane -
appellant No. 1. He might himself be frightened on seeing the death
of his younger brother or be himself kept under terror by appellant
No.1. The conduct of the appellants that they did not attempt to run
away at any time, either before the arrival of their mother, or even
subsequently, when she went away to Karmatara and the house
remained unguarded, is also an important circumstance not
consistent with the hypothesis of the guilt of the appellants. No
human blood was found by the Serologist in his reports on the three
weapons which were recovered from the house and seized by the
police which are said to be used for commission of the offence. The
court said that the chain of evidence is not so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the appellants.

The Supreme Court in Sarwan Singh Rattan Singh v. State of

Punjab4 has observed that there may be an element of truth in the
prosecution story against the accused, but between "may be true"
and "must be true" there is inevitably a long distance to travel and
the whole of this distance must be covered by the prosecution by
legal, reliable and unimpeachable evidence before an accused can
be convicted.

The court held that the prosecution has not established the
entire chain of evidence to sustain the charge against the appellants
beyond all reasonable doubt.

So far as the case of appellant No. 1 is concerned, there is yet

another factor in his favour. The consistent evidence of all the
prosecution witnesses is that he was insane at the time of the
occurrence and his mental condition was upset to such an extent
that none of the members of the family was prepared to live with
him and he had to be left all alone in the house keeping him under
fetters. In our opinion, therefore, he is entitled to the benefit of the
provision of Section 84 of the Indian Penal Code. Against this

4
AIR 1957 SC 637
 P a g e | 11

appellant, however, another positive circumstance appears which

cannot be applied against appellant No. 2, and that is that he was
present in the house all through in the night from which the dead
body of the deceased was recovered. Even assuming that this
circumstance may be considered against him, he is entitled to the
exception provided under Section 84 of the Indian Penal Code.
Section 84 of the Indian Penal Code provides that an act of a person
of unsound mind who, at the time of doing it, by reason of
unsoundness of his mind, is incapable of knowing the nature of the
act, is not an offence. The trial Court has rejected this plea on the
sole ground of burden of proof and has relied upon Section 105 of
the Evidence Act. On appraisal of the evidence indicated above, the
appellate authority was not prepared to accept this view.

It was held by the same Court in Kamla Singh v. The State5 :

“The presumption under Section 105 is rebuttable, if any fact

sufficient to rebut the presumption has been proved by the
defense, and the moment that presumption is rebutted by the
defense and the Court is brought to a point where it becomes
doubtful of the fact or when it cannot positively hold that the
prisoner was not then of unsound mind and was capable of
knowing the nature of the act alleged against him, the onus
under Section 105 has to be taken as discharged, for, by
reason of the neutralisation of the force of presumption the
prosecution is thrown back to its original position where it has
to discharge its onus beyond reasonable doubt. The defense
therefore, has not to prove affirmatively beyond reasonable
doubt that the person was of unsound mind and that by reason
of unsoundness of mind was incapable of knowing the nature
of the act. In other words, the defense has only to demolish
the aforesaid presumption laid down against the accused
under Section 105, and not to prove beyond reasonable doubt,
the opposite of that presumption.”

The same view has been taken by the Supreme Court in

Dahyabhai Chhaganbhai Thakkar v. State of Gujarat6 where it was

5
1955 Cr.L.J. 825
6
AIR 1964 SC 1563
 P a g e | 12

observed that 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 Penal Code can only
be established from the circumstances which preceded, attended
and followed the crime.

The consistent evidence of the prosecution witnesses right

from the statement recorded by the Police is that appellant No. 1
was of unsound mind at the time of the occurrence, so much so that
none of the family members dared even to live with him and had
shifted to another house. It is the case of the prosecution itself that
for that purpose in order to look after appellant No.1, a telegram
was sent by P.W. 3, the mother to appellant No. 2 to come back to
his village. The preceding circumstances, to the occurrence are
completely in favour of appellant No.1. After considering such facts,
court favored the plea of insanity. The court said that appellant No.1
did not attempt to run away after committing the alleged crime
when he had sufficient and convenient opportunity to do so. He did
not make any attempt even thereafter and conveniently pointed out
the dead body. On these materials, the Bench feels satisfied that
even assuming that the offence was committed by him, he is
protected under Section 84 of the Indian Penal Code, and he being a
person of unsound mind, his act would not amount to an offence
under the law.

Now on consideration of the last contention advanced by Mrs.

Mishra that the trial was vitiated on account of non-compliance of
the procedure laid down under Section 465 of the Code of Criminal
Procedure, the Bench held that they do not find any substance in
this argument. Section 465 applies to a person who appears to the
court at his trial to be of unsound mind and consequently incapable
of making his defense, and not to a person who is not so at the time
of the trial but suffered such an incapacity at the time of
commission of the offence. The distinction between incapacity at the
 P a g e | 13

time of doing the act charged and incapacity at the time of trial,
therefore, is apparent. While both are induced by unsoundness of
mind, the former is substantive which excludes the offender under
Section 84 of the Indian Penal Code, 1860, the latter only affects
the procedure and merely postpones the trial which must be
resumed when the incapacity disappears on a future date. As a
preliminary condition to the applicability of Section 465, it must
appear to the court before which an accused is brought that he is of
unsound mind and, consequently, incapable of making his defense,
If no such abnormality disclosed, the Court should proceed with the
trial and no action under Sections 464 and 465 of the Code of
Criminal Procedure is called for. No such plea was advanced on
behalf of appellant No.1 at the time of the trial and there is no
material to suggest that he appeared to be of unsound mind to the
trial Court when the trial had started.

After considering all the relevant facts the court held that the
prosecution has failed to bring home the charge against the
appellants or any one of them beyond all reasonable doubt for
killing Sukho Marandi and inasmuch as it was held that appellant
No.1 was insane at the time of the alleged offence, his case comes
under the exception of Section 84 of the Indian Penal Code and he
is entitled to an acquittal on that account. So far as appellant No.2
is concerned, court gave him the benefit of doubt.

As per the result, the appeal succeeds and the judgment and
order of the trial Court is set aside. Appellant No. 1 was covered
under the exception of Section 84 of the code and appellant No. 2
was released on the grounds of benefit of doubt.
 P a g e | 14

Recent Case Laws

STATE OF RAJASTHAN - APPELLANT

VERSUS

SHERA RAM @ VISHNU DUTTA - RESPONDENT

[ 2012(1) R.C.R. (Criminal) 197 ]

In the preset case respondent Shera Ram @ Vishnu Dutta was

charged for committing an offence under Sections 302, 295 and 449
of the Indian Penal Code, 1860 and was sentenced to undergo
imprisonment for life by the Additional Sessions Judge-1, Jodhpur
vide judgment dated 7th June, 2000. However, upon appeal, he
came to be acquitted of all the offences by a Division Bench of the
High Court of Rajasthan vide order dated 21st February, 2004
primarily on the ground that at the time of incident, he was a
person of unsound mind within the meaning of Section 84 Indian
Penal Code and was directed to be detained in safe custody in an
appropriate hospital or a place of custody of non-criminal lunatics as
would be provided to him by the State Government under the direct
supervision of the Jail Authorities till the time he was cured of his
mental illness and infirmity. Aggrieved from the said judgment, the
State of Rajasthan has presented this appeal by way of a special
leave petition to the Supreme Court of India.

The facts of case were that on 10th March, 1999 at about 7.15
a.m., while Pujari Tulsi Das (now deceased) was in the
Raghunathji's temple, the respondent abruptly hurled a stone on his
head resulting into his instantaneous death. The respondent also
damaged the idol and other properties of the temple. This all was
unprovoked. The incident was witnessed by the villagers including
PW-6 Santosh, PW-11 Narsingh Ram and PW-16, Smt. Tiku Devi.

PW-2, Ghan Shyam Das Daga reported the matter to the

police immediately. Upon receipt of the information, the police
 P a g e | 15

registered a case under Section 302 Indian Penal Code and

proceeded with the investigation. The body of the deceased was
sent for post-mortem which was performed by PW-20, Dr. C.P.
Bhati.

After investigation, the police filed the challan upon which, the
respondent was committed to the appropriate Court of Sessions for
trial. The charge-sheet was filed under Sections 302, 295 and 449
Indian Penal Code. The respondent denied the charges leveled
against him and claimed trial.

The prosecution examined as many as 23 witnesses to prove

its case. The material piece of evidence appearing in the case of the
prosecution against the respondent were put to him and his
statement was recorded by the learned Trial Court. According to the
respondent, his mental condition was not good right from the year
1992-1993 and he occasionally suffered from fits of insanity. He had
undergone treatment for the same. He has stated that in the jail
also, he was receiving the treatment. To put it simply, he claimed
the defense of insanity under Section 84, Indian Penal Code, 1860.
The learned Trial Court rejected the plea of defense of insanity and
convicted the respondent.

The respondent preferred an appeal against the judgment and

order of conviction by the Trial Court. The plea of insanity raised by
the respondent has been accepted by the High Court resulting in his
acquittal vide order dated 21st February, 2004.

It was held by the Supreme Court that High Court after

consideration of the entire evidence produced by the prosecution,
affirmed the finding that the incident as alleged by the prosecution
had occurred and the respondent had hurled a stone on the head of
Pujari Tulsi Das which resulted in his death. This being a finding of
fact based upon proper appreciation of evidence, does not call for
any interference by them. The corollary that follows from the above
is whether having committed the charged offence, the respondent is
entitled to the benefit of the general exception contained in Section
84, Chapter IV of the Indian Penal Code?
 P a g e | 16

Section 84 states 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 what he
is doing is either wrong or contrary to law.

The respondent not only in his statement under Section 313

Criminal Procedure Code took up the defense of mental disorder
seeking benefit of Section 84 Indian Penal Code but even led
evidence, both documentary as well as oral, in support of his claim.
He examined Dr. Vimal Kumar Razdan, DW-2, who deposed that he
had examined the respondent and had given him treatment. He,
also, produced the examination report in regard to the treatment of
the respondent, which was prepared in his clinic.

According to the statement of this doctor and the prescription,

the respondent was suffering from Epilepsy and while describing
post epileptic insanity, this witness stated that after the epileptic
attack, a patient behaves like an insane person and he is unable to
recognise even the known persons and relatives. During this time,
there is a memory loss and the patient can commit any offence.

Another witness who was produced by the defense was DW-1,

Bhanwar Lal, the brother of the respondent. According to this
witness, the respondent was suffering from mental disorder since
1993. He stated that when he gets the fits of insanity, he can fight
with anybody, hit anybody and even throw articles lying around
him.

This oral and documentary evidence clearly shows that the

respondent was suffering from epileptic attacks just prior to the
incident. Immediately prior to the occurrence, he had behaved
violently and had caused injuries to his own family members. After
committing the crime, he was arrested by the Police and even
thereafter, he was treated for insanity, while in jail.

The finding of the High Court, being in consonance with the

well settled principles of criminal jurisprudence, does not call for any
interference. More so, the learned counsel appearing for the State
has not brought to our notice any evidence, documentary or
 P a g e | 17

otherwise, which could persuade us to take a contrary view i.e.

other than the view taken by the High Court.

Another aspect of this case which requires consideration by

this Court is that the case of the prosecution suffers from legal
infirmity. In fact, the prosecution has failed to prove beyond
reasonable doubt that the injury inflicted by the respondent upon
the deceased was sufficient in the ordinary course of nature to
cause death. It is the case of the prosecution that the respondent
had hurled a stone which had caused injury whereupon the
deceased fell on the ground and subsequently collapsed. According
to the doctor, all these injuries were ante mortem in nature and the
cause of death was shock and haemorrhage due to head injury.

In the statement of PW-20, Dr. C.P. Bhati, it is nowhere stated

that the injuries caused by the respondent were sufficient in the
ordinary course of nature to cause death. This was a material piece
of evidence which the prosecution was expected to prove in order to
bring home the guilt of the respondent.

There is no documentary or oral evidence to prove the fact

that the injuries caused by the respondent to the deceased were
sufficient in the ordinary course of nature to cause death.

The Hon’ble bench, thus, finds no error in the judgment given

by the High Court. Thus, the appeal was dismissed.

MS. LEENA BALKRISHNA NAIR - APPELLANT

VERSUS

THE STATE OF MAHARASHTRA - RESPONDENT

[ 2010(5) R.C.R. (Criminal) 274 ]

The facts of the case are that the appellant was residing at
Room No. 172, Plot No. 5, Nagababa Nagar, Vashinaka, Chembur
along with her aunt DW-1 Ramani Subhash Gaikwad, deceased
 P a g e | 18

Aparna and PW-1 Radhakrishnan Balkrishnan, who is the brother of

the appellant.

According to PW-1 Radhakrishnan, on 29/3/2002, while he

was in the grocery shop of Bhimrao Kamble at about 7.00 p.m., his
neighbour Sunita Chavan came to the shop and informed him that
she heard a sound of throwing of stone from his room. He went to
his room and knocked the door for 2-3 times. Since nobody gave
any response, he pushed open the door of the room. He noticed the
deceased, the daughter of his aunt DW-1 Ramani, lying in a pool of
blood inside the room. He noticed that the appellant was sitting on
the cot. Nobody else was present there.

PW-8 PSI Chandrakant Patil, the Investigating Officer, who

was attached to RCF Police Station, has stated in his evidence that
he received telephone message at about 5.45 p.m. that one minor
girl was murdered at Nagababa Nagar, Vashinaka, Chembur. On
receipt of this information, he, PW-9 PI Vijay Meru and his staff
reached the scene of offence. He found the dead body of minor girl
lying in Room No. 172. Statement of PW-1 Radhakrishnan came to
be recorded. It was treated as FIR. On the basis of the said FIR,
investigation was started. PW-7 ASI Vithoba Jadhav, who had
received a wireless message on 20/3/2000 at about 5.30 p.m.
reached the scene of offence. He took over the custody of the
appellant, who was present there.

The defense of the appellant was one of total denial. The

appellant was tried by the Court of Sessions for Greater Bombay in
Sessions Court for offence punishable under Section 302 of the
Indian Penal Code, 1860. The appellant denied the prosecution case
and set up the case of insanity. Learned Sessions Judge accepted
the prosecution version. He came to a conclusion that the
prosecution had proved its case beyond reasonable doubt. He also
came to the conclusion that the appellant had not been able to
probabilise her evidence that she was of unsound mind at the time
of commission of offence. By impugned judgment and order dated
5/7/2002, the appellant was convicted for offence punishable under
Section 302 and sentenced to suffer imprisonment for life and to
pay a fine of Rs. 300/-, in default, to suffer rigorous imprisonment
 P a g e | 19

for one month. Being aggrieved by the said judgment and order, the
appellant has preferred the present appeal.

Here, Learned counsel submitted that the evidence on record,

particularly the evidence of DW-1 Ramani, completely establishes
the defense of insanity and, therefore, in view of Section 84 of the
Indian Penal Code, 1860, the appellant ought to have been
acquitted. Learned A.P.P. on the other hand, submitted that no
interference is necessary with the impugned order.

The postmortem notes indicate that the deceased had inter

alia suffered fracture of skull. The cause of death is stated in the
postmortem notes as "Head injury and Brain Hemorrhage".
Radhakrishnan’s (P.W.-1) deposition makes it evident that on
29/3/2000 body of the deceased was found lying in his room
situated at Nagababa Nagar, Vashinaka, Chembur, in an injured
condition in a pool of blood. His evidence also establishes that the
appellant was sitting on the cot in the room and nobody else was
present inside the room.

DW-1, Ramani has stated that the deceased was her daughter.
She had suffered a serious leg injury. She was unable to walk and,
therefore, she had stopped attending the school. DW-1 Ramani has
further stated that six months prior to March, 2000, the appellant
had a feeling that somebody comes and assaults her. She was
inclined towards committing suicide. Few days prior to March, 2000,
she had run away from the house. DW-1 Ramani had shown the
appellant to a local doctor. The local doctor had advised her to
consult a specialist but she had no money for such consultation.
DW-1 Ramani has further stated that sometimes the appellant used
to respond properly. She used to sit by keeping her hands over her
ears for long time. At such moment, she never used to talk to
anybody and she never used to answer anyone's questions. The
evidence of the defense witness reflects the appellant's plea of
insanity.

The case papers of the Thane Mental Hospital indicate that the
appellant was under treatment for mental illness or insanity. It is
noted in the medical papers that her behaviour was abnormal, she
 P a g e | 20

gets excited and engages herself in irrelevant talk. It is stated that

she has auditory hallucinations and has suspicion about neighbours.

Here, the Bench was unable to hold that the appellant had
intention to murder the deceased. Her brother PW-1 Radhakrishnan
has stated that after the incident in question took place, when he
entered the room, he found the deceased lying in a pool of blood
and the appellant was sitting on the cot. He has further stated that
she was murmuring. The fact that after committing the offence, the
appellant continued to sit and murmur is an indication that all was
not well with her mental condition. The normal reaction of any
accused in his senses would be to run away.

The fact that the mother of the deceased has gone on record
to say that the appellant was ill and was getting hallucinations is
important and is a pointer to the appellant's insanity. It must be
remembered that the appellant had killed her daughter.

It was held that from the evidence of PW-1 Radhakrishnan and

DW-1 Ramani, the Bench has no hesitation in further concluding
that on the date of incident, the appellant was mentally unsound.
Her behaviour establishes this fact beyond doubt. The prosecution
has established circumstances which preceded, attended and
followed the crime. It must be remembered that the accused does
not have to conclusively prove the defense of insanity. If the
evidence adduced by the prosecution and by the defense raises a
reasonable doubt in the mind of the court that the accused might
have been insane when she committed the offence, the accused is
entitled to the benefit of Section 84 of the Indian Penal Code. We
feel that learned Judge overlooked vital evidence. He wrongly
convicted the appellant. The appellant will have to be therefore
acquitted.

The court held that the impugned judgment and order dated
5/7/2002 is quashed and set aside. The appellant - Ms. Leena
Balkrishna Nair is acquitted of the charge levelled against her. The
appeal is thus allowed.
 P a g e | 21

The State shall revoke G.R. dated 8/4/2010 and warrant of the
same date as they proceed on the assumption that the appellant is
convicted and issue appropriate G.R., if necessary.

The court directed that the appellant shall be detained in safe

custody either in the Regional Mental Hospital, Yerwada if she needs
further treatment or in some other appropriate jail or place and the
jail authorities shall submit a report to the State Government
forthwith whether the appellant can be released without danger of
her doing injury to herself or to any other person and upon receipt
of such a report from the jail authorities, the State Government
shall take appropriate steps as envisaged under Section 338 of the
Code in the matter of release of the appellant.
 P a g e | 22

Bibliography

Books and Journals:

 Misra S. N., Indian Penal Code, 1860, 19th Ed., Central Law
Publication Company, Allahabad, 2013

 Criminal Law Journal

 Recent Criminal Reporter

Weblinks:

 www.indiankanoon.com

 www.manupatra.com