1. Heard Mr Thombre, learned Advocate (appointed) for the appellant and the learned APP for the respondent/State.
2. Challenge in this appeal to the judgment dated 03-01- 2018 passed by the Additional Sessions Judge, Beed in Sessions Case No. 89/2016 by which the accused was convicted for the commission of offences punishable under Sections 304 Part-I of the Indian Penal Code, 1860 [in short ‘IPC’] and directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 500/-. In default, the accused was directed to suffer rigorous imprisonment for 15 days.
3. In short, it is the case of the prosecution that on 30-04- 2016, when the informant/PW-1, who was the father of the accused, was sitting in front of his house, the accused questioned him as to why he was chewing tobacco and assaulted him by stick on the leg. At which time, mother-in-law of PW-1/grand mother of the accused scolded the accused and then accused brought the axe from the house and assaulted the grand-mother on the head due to which she fell in pool of the blood.
4. This incident led to the initiation of criminal proceedings, but not to the immediate registration of the First Information Report. It was PW-8-Gajanan, API attached to the Pimpalner Police Station, who was on patrolling duty that day. He received a phone call from the Pimpalner Police Station that a murder had taken place at Ghodka Rajuri. Therefore, he took the station diary entry upon arriving at the police station and went to the spot. At the scene, he found a crowd gathered in front of the house and learned that it belonged to PW-1. He then informed his superior.
5. PW-8 on the spot found the corpus of a female, and thereafter he prepared an inquest panchanama, which was proved below Exh. 21. The corpus was forwarded for postmortem to the Civil Hospital, Beed and even a letter to that effect was issued, which was below Exh. 20.
6. Finally, as per the case of the prosecution on 01-05- 2016, PW-1 came to the police station and lodged the first information report. His complaint was below Exh. 63. The lodgment of the complaint resulted in the arrest of the accused on 01-05-2016, and the arrest panchanama was proved below Exh. 66 by PW-8.
7. The investigation was carried out, clothes were seized, witness statements recorded, and the stained clothes and the axe were forwarded for chemical examination. After completion of the investigation, a charge sheet was filed, and, since the trial court found a prima facie case, the charge was framed against the accused below Exh. 12/C on 27-03-2017 for commission of offences punishable under Sections 302 and 323 of the IPC.
8. The record of the case shows that on 31-01-2017 the learned Sessions Judge, Beed, ordered the Civil Surgeon, Civil Hospital, Beed to comply with the order dated 04-01-2017 which was for referring the accused for medical examination. By order dated 31- 01-2017, it was further directed that the Superintendent of District Prison, Beed,to produce the accused before the Civil Surgeon, Civil Hospital, Beed, with prior appointment. On 10-03-2017, the Additional Sessions Judge, Beed had observed that the accused No. 1 had complaints of unsoundness of mind since long. The Civil Surgeon had filed a certificate dated 13-02-2017, which shows that the accused was examined by the Psychiatrist at the Civil Hospital on 18- 01-2017. The said certificate also reveals that the accused was treated for depressive disorder at the jail, and at the time of examination, the patient was conscious and oriented. The defence had also accepted the report of the Civil Surgeon, and, considering the report filed on record, the Additional Sessions Judge, Beed, observed on 10-03-2017 that the accused is not of unsound mind and capable of making his defence. Then, it was noted that it did not impede proceeding with the trial. Steps were required to be taken by the trial court since it was stated by the accused that he had a mental illness. The aforesaid defense also surfaces from the line of cross- examination.
9. Be that as it may, since the accused did not admit guilt, the prosecution in order to bring home the charge; in all, examined a total of 8 witnesses. Before coming to the discussion of the testimony, it is relevant to point out that the counsel for the appellant challenging the judgment of conviction has raised the following points. (i) insanity of the accused (ii) Since the case was based on circumstantial evidence, it was the duty of the prosecution to establish every link of the chain (iii) the case was not proved by the prosecution beyond a reasonable doubt.
10. Learned APP has not only rebutted the arguments advanced by the learned advocate for the appellant, but has stated that the circumstances were brought on record which were duly proved by the prosecution points out one fact: the accused was the author of the crime. She thus prayed for the appeal to be dismissed.
11. As already stated, the accused was charged for the commission of an offence punishable under Section 302 and 323 of the IPC. The conviction awarded to the accused is under Section 304, Part I of the IPC. Section 304 of the IPC prescribed punishment for culpable homicide not amounting to murder. It can be divided into two parts. (i) when the act by which death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death (ii) if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
12. Thus, it is clear that the case of prosecution is that the accused has committed an act by which death is caused with the intention of causing death. It is in this background that the the testimony of the witnesses is required to be seen.
13. Notably the notice dated 09-05-2017 was issued under Section 294 of the Cr. P. C. below Exh.15 and following documents were admitted.
| Sr. No. | Particulars | Date | By whom prepared |
| 1. | Letter issued to M. O. Civil Hospital, Beed | 01-05-16 | API, PS Pimpalner |
| 2. | Inquest Panchanama | 01-05-16 | API, PS Pimpalner |
| 3. | Receipt of dead body | 01-05-16 | API, PS Pimpalner |
| 4. | Death Certificate | 01-05-16 | M. O. D. H. Beed |
| 5. | Spot Panchanama | 01-05-16 | G. B. Jadhav, API, PS Pimpalner |
| 6. | Seizure Panchanama of Baburao | 01-05-16 | G. B. Jadhav, API, PS Pimpalner |
| 7. | PM notes of Tanhabai | 01-05-16 | M. O. D. H. Beed |
| 8. | Letter issued to M. O. C. H. Beed | 01-05-16 | API, PS Pimpalner |
| 9. | Letter issued to Exe. Magistrate, Beed for Spot Map | 01-05-16 | API, PS Pimpalner |
| 10. | MLC No. 1736 of Shivaji | 01-05-16 | M. O. D. H. Beed |
| 11. | MLC No. 1760 of Shivaji | 01-05-16 | M. O. D. H. Beed |
| 12. | Spot Map | 20-06-16 | C. I. Div. Pali |
| 13. | Letter of Supdt., Dist. Prison | 20-01-17 | Supdt. Dist. Prison, Beed |
| 14. | Copy of letter of Civil Surgeon, Dist. Hospital, Beed | 18-01-17 | Civil Surgeon, D. H. Beed |
15. Since he denied the suggestion that on the day of incident in the evening, he was preparing the tobacco for eating in front of his house and that accused was with him and mother-in-law slept in the cattle shed, it did not happen that accused asked PW-1 as to why he is chewing tobacco and beaten him by stick on left leg, at this stage, the prosecution sought permission to cross-examine this witness.
16. The permission was granted by the trial court, and in the cross-examination, PW-1, at the instance of the prosecution, he admitted that at the time of the incident, his wife had gone outside the house to answer nature’s call, and since prior to four days of the incident, his mother-in-law was residing with him. He then denied the incident which had taken place, but had admitted that Ramnath and Mohan were his neighbours, and after the incident, these two persons came to the house of the PW-1, snatched the axe from the hands of the accused, so also , the injuries sustained by the mother- in-law of PW-1 were also noted.
17. He also admitted that his mother-in-law died on the spot and Angad Patil is the Police Patil of the village of PW-1. PW-1, in his cross-examination, has admitted that he visited the police station, put his thumb impression, and stated that it was on a complaint, but denied that he had given information regarding the commission of an offence to the police. He further admitted that he had been to the court at Beed, where his statement was recorded, but denied that it was recorded as per his say. He admitted that his thumb impression was on the said statement below Exh. 40. He further admitted that the police had arrested his son.
18. PW-1 was then cross-examined at the instance of the defence, in which he admitted that his son/accused had been behaving like an insane person for the last many years, and treatment was given to the accused by the Psychiatrist. He volunteered that the file about the treatment was burn by the accused, and the accused was wandering due to mental retardness. He admitted that, on suspicion, the accused was arrested, and that the police had taken only a thumb impression. He admitted, during cross-examination by the defence, that the statement given in court was, as per say of the police authorities.
19. PW-2 was neighbour by name Mohan who has stated that on 30-04-2016 at about 07.00 to 07.30 pm when he was at home he heard noise from the house of the PW-1 and therefore, immediately called his nephew Ramnath, then went to the house of PW-1. When they reached, PW-1 and the accused were fighting, and they were rescued by PW-2 & PW-3. Thereafter, they caught hold of the accused and tied him to the tree. when they saw the accused and PW-1, at that time, the accused was assaulting his father by means of slaps, except that PW-2 deposed that he did not see anything. Thereafter, they went home.
20. As this witness also retracted the earlier statement he had given, the prosecution again sought permission to cross-examine PW-2, which was allowed by the court. During cross-examination, various suggestions given to this witness were also denied. In the cross-examination at the instance of prosecution, PW-2 had admitted that on 02-05-2016, the police had enquired with him about the incident, and portions mark-A and B of the statement were not correctly recorded by the police. He could not give any reason for the same. He deposed that he had given the statement on 07-05-2016 in the Beed Court and that he had put his signature below the statement; however, when the statement was read over to him, he stated that he did not know its contents, whether or not it was his say.
21. PW-2 was cross-examined briefly by the accused, in which he admitted that the accused is mentally ill and therefore, on the day of the incident, he was tied to the tree, and further, the accused used to quarrel with the villagers, used to shout and wander. He stated that his statement before the court under Section 164 of the Cr. P. C. was given as per the police's say.
22. PW-3 is Ramnath, reference to whom is made in the testimony of PW-2. This witness has stated that he was a neighbour of PW-1 and that on the day of the incident, at about 08.00 to 08.30 pm, he heard noise from PW-1's house and went there along with PW-2, his uncle. The accused was holding an axe in his hand, and PW-1 had caught hold of it. PW-3 then snatched the axe from the accused and tied him to the tree. PW-2 and PW-3 were at the spot where they saw the mother-in-law of Rama Kamble was dead, and she had sustained two blows to the head with an axe. PW-3 then returned to his house. His statement was recorded under Section 164 of the Cr. P. C. in the Beed Court. He admitted that its contents are true and thus it is exhibited below Exh. 47. He stated that he cannot identify the axe if shown to him.
23. Cross-examination of the PW-3 by the defense shows that he was present at the spot of occurrence for half and hour and accused at that time ran away at the distance of 100 to 200 fts and he did not chase him. He stated that the reason for tying the accused to the tree was that the accused may assault anyone, as the accused suffers from mental fits. In between, he denied other suggestions.
24. PW-6-Vishnu is the son of the deceased who was examined by the prosecution. He deposed that his mother had been to the house of her daughter at Village Ghodka Rajuri, and on 30-04- 2016, when he was at home, his nephew Ashok had informed him telephonically that a quarrel had taken place between the mother of the PW-6 and the accused. Therefore, they were required to go to the village, and accordingly, they went there. When PW-6 reached his sister’s place, he found his mother was lying dead and had sustained grievous injury so also blood was oozing from the injuries.
25. He then enquired from PW-1, who told him that as PW-1 was chewing the tobacco, it was objected to by the accused, and then the accused assaulted PW-1 on his leg. When the mother of PW-6 questioned the accused, the accused assaulted her by means of axe. He further stated that the accused had killed his mother since she had questioned the accused as to why he had assaulted his father. He stated that the police recorded his statement.
26. He was subjected to cross-examination, in which he admitted that when he reached the house, he found the accused tied to the tamarind tree, behaving like a man of unsound mind. He admitted that before one year from the date of incident, he was taking treatment from Psychiatrist, but the treatment was stopped. Dr Baglane was the psychiatrist from whom the treatment was taken, and the accused had stopped taking the treatment as he had recovered from the illness. He further deposed that the accused, on his own, stopped taking the medicine and thereafter was not willing to take the medicine. Though the PW-6 tried to give medicine to the accused, the accused refused to accompany PW-6. He admitted that till 02-05-2016 the incident was not narrated to the police and the reasons for the same was mentally illness of the accused. He admitted that the police had not enquired about the mental condition of the accused. So also, had not requested the police authorities to take the accused to the Psychiatric.
27. The testimony of the aforesaid witnesses was challenged by the defence on various grounds. Assailing the testimony of PW-1, it is contended that he has turned hostile, so also PW-2, and therefore, they are not reliable witness. The testimony of PW-3 was assailed on the ground that this witness had also not seen the incident. So far as the testimony of PW-6 is concerned, it was argued by the defence that though the accused was suffering from a mental illness, no steps were taken by the prosecution to take recourse to the provision of law, more particularly, Section 84 of the IPC. The learned APP has contended that if the testimony of PW-1, PW-2, PW- 3 and PW-6 is considered, it would reveal that the story of illness was advanced for the first time and same is false/.
28. Before discussing the further case, it is crucial to deal with the issue of insanity.
Legal Insanity is a term used to describe a mental state that is severe enough to prevent a person from having legal capacity and excuses them from criminal responsibility. M'Naghten's case (1843) 10 Cl & Fin 200, 1843 RR 59, (1843-60) All ER Rep 229 (HL) The case provides that a defendant wishing to rely on the defense of insanity must show that: They laboured under a defect of reason Caused by a disease of the mind; so that either He did not know the nature and quality of his acts, or that he did not know what he was doing was wrong. Prakash Nayi Alias Sen Vs State of Goa [2023 (5) SCC 673] The cases referred in the judgment are as follows:
A. Hari Singh Gond v. State of Madhya Pradesh, ( 2008) 16 SCC 109
“10.7.
Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There, is no definition of “unsoundness of mind” in the IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity…”
B. Dahyabhai Chhaganbhai Thakkar v. State Of Gujarat [1964 SCR 7 361]
"9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offense 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 offense 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."
In the case of Devidas Loka Rathod v. State Of Maharashtra (2018) 7 SCC 718 the Hon’ble Apex Court has held that:
“11. Section 84 IPC carves out an exception, that an act will not be an offense, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts.
The accused has only to establish his defense on a preponderance of probability, as observed in Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495, after which the onus shall shift on the prosecution to establish the in applicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice.
The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State Of Rajasthan v. Shera Ram Alias Vishnu Dutta.(2012) 1 SCC 602 as follows :
“19…Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.”
Surendra Mishra v. State Of Jharkhand 2011 (11) SCC 495
11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression “unsoundness of mind” has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term “insanity” carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer, are not sufficient to attract the application of Section 84 of the Penal Code.”
28-A. A reference can also be made to the judgment of Sheralli Wali Mohammed vs State of Maharashtra 1973(4) SCC 79. The gist of which is that nevertheless, the accused has to produce relevant evidence to claim the benefit of doubt. Mere absence of motive or the fact that the accused did not attempt to run away after committing a crime does not indicate his unsoundness of mind. In , the court observed that the mere absence of proved motive for committing a crime would not prove that the accused was insane.
29. It bears mentioning that, before the commencement of the trial, the accused was referred for examination to the Psychiatrist. Thereafter, the trial court issued a detailed order, relying on the certificate that the accused was not of unsound mind and capable of making a defence. The said order dated 10-03-2017, passed by the trial court, was not taken exception to by the accused. This fact shows that the accused had not disputed that the accused was not of unsound mind. Further law in this regard is also clear that, though the plea of insanity is not taken by the defence, if it surfaces on the record from the material, an appropriate decision can be taken. It can be seen that neither at the time of lodging of the First Information Report or during the course of the investigation the relatives of the accused made any attempt to take a stand that accused was suffering from the mental illness that too at the time of commission of offence.
30. PW-1 is the father of the accused, who has stated that the file of treatment was burned by the accused. Though PW-2 has stated that the accused was suffering from mental illness and mental fits, no specific instances were brought to the record. Further PW-3 has specifically stated that his statement was recorded under Section 164 of the Cr. P. C. which was below Exh.47. In the statement under Section 164 of the Cr. P. C. also PW-3 has not stated about the accused suffering from the mental fits.
31. At this juncture, the learned APP has rightly relied upon the judgment in the case of Dahyabhai Chhaganbhai Thakker Vs State of Gujarat reported in AIR (1964) SCR 361, more particularly on para 6 and 7, which are reproduced as under:
“ 6. The textbooks placed before us and the decisions cited at the Bar lead to the same conclusion. In Halsbury's Laws of England, 3rd edn., Vol. 10, at p. 288, it is stated thus:
"The onus of establishing insanity is on the accused. The burden of proof upon him is no higher than that which rests upon a party to civil proceedings."
Glanville Williams in his book 'Criminal Law', The General Part, 2nd Edn., places the relevant aspect in the correct perspective, thus, at p. 516:
"As stated before, to find that the accused did not know the nature and quality of his act is, in part, only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime; and if the crime is one requiring intention or recklessness he must, on the view advanced in this book, be innocent of mens rea. Since the persuasive burden of proof of mens rea is on the prosecution, the question of defence, or of disease of the mind, arises, except in so far as the prisoner is called upon for his own safety to neutralise the evidence of the prosecution. No persuasive burden of proof rests on him. If the jury are uncertain whether the allegation of mens rea is made out ............ the benefit of the doubt must be given to the prisoner, for, in the words of Lord Reading in another context, "the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner."
This Court in K. M. Nanavati v. State of Maharashtra(1) had to consider the question of burden of proof in the context of a defence based on the exception embodied in s. 80 of the Indian Penal Code. In that context, the law is summarised thus:
"The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under s. Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of the ingredients of the offence : ( see s. 80 of the Indian Penal Code)........................
In the third case, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence."
After giving an illustration, this Court proceeded to state:
"That evidence may not be sufficient to prove all the ingredients of Section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.................. In this view, it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused."
What is said of s. 80 of the Indian Penal Code will equally apply to s. 84 thereof. A Division Bench of the Patna High Court in Kamla Singh v. The State invoked the same principle when the plea of insanity was raised. A Division Bench of the Nagpur High Court in Ramhitram v. State has struck a different note since it held that the benefit of doubt which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect the accused with the occurrence, and that it had nothing to do with the mental state of the accused. With great respect, we cannot agree with this view. If this view were correct, the court would be helpless and would be legally bound to convict an accused even though there was a genuine and reasonable doubt in its mind that the accused did not have the requisite intention when he did the act for which he was charged. This view is also inconsistent with that expressed in Nanavati's case. A Scottish case, H.M. Advocate v. Fraser, noticed in Glanville Williams' "Criminal Law", The General Part, 2nd Edn., at p. 517, pinpoints the distinction between these two categories of burden of proof. There, a man killed his baby while he was asleep; he was dreaming that he was struggling with a wild beast. The learned author elaborates the problem thus:
"When the Crown proved that the accused had killed his baby, what may be called an evidential presumption or presumption of fact arose that the killing was murder. Had no evidence been adduced for the defence, the jury could have convicted of murder, and their verdict would have been upheld on appeal. The burden of adducing evidence of the delusion, therefore, lay on the accused. Suppose that, when all the evidence was in, the jury did not know what to make of the matter. They might suspect the accused of inventing a tale to cover his guilt, yet remain reasonably uncertain about it. In that event the accused would be entitled to an acquittal. The prosecution must prove beyond a reasonable doubt not only the actus reus but the mens rea. "
7. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond a reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was, insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.”
32. The Hon’ble Apex Court has thus, clearly stated that even if the accused were not able to establish the conclusive that he was unsound mind at the time of committing the offence, evidence placed before the court by the accused, or by the prosecution may raise reasonable doubt in the mind of the court as regards one or more important ingredients of the offence, including mens rea in that case, the court would be entitled to acquit the accused on the ground that general burden of proof prosecution was not discharge.
33. In this case, as already stated, there is absolutely no material on record to come to the conclusion, even based on preponderance of probability, that at the time of committing the offence, by reason of unsoundness of mind the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to the law. Further, the accused's questioning of the father regarding the chewing of tobacco shows that he could understand the effect of eating the tobacco, running away from this spot, shows that accused was not suffering from legal insanity. Perusal of statement recorded under Section 313 of Cr. P. C. also shows that except denial and his false implication no defense is taken by accused.
34. Thus, the defence taken by the accused thus seems to be not based on preponderance of probability and I thus come to the conclusion that recourse to section 84 of the IPC cannot be taken as nothing has been brought on record, based on the preponderance of probability that the accused was suffering from insanity. Medical insanity and legal insanity are indeed two different aspects, but to conclude that the accused was suffering from legal insanity, something should have been brought on record. Further, the medical report showing that the accused was not suffering from an unsound mind, which was also admitted by the defence, supports the stand taken by the prosecution.
35. It is important to see the question as to whether circumstances are proved to award the conviction to the accused. Law in this regard is crystal clear and authoritative pronouncement of the the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda Vs State of Maharashtra reported in (1984) 4 SCC 116, is a great help and relevant para of it is :
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(3) The circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused, and must show that, in all human probability, the act must have been done by the accused.
36. Thus, in the aforesaid light, it will have to be seen whether facts established are consistent only with the hypothesis of the guilt of the accused and are not explainable on any hypothesis except that of the accused.
37. It is a further well-settled principle of law that a witness may lie, but circumstances will never.
38. Thus the question would also be whether the prosecution has proved the case beyond a reasonable doubt. It is settle principle of law that the initial burden to prove the case always lies on the prosecution. The foundational facts must also be proved. The prosecution must prove positive facts, but the rule cannot always apply to negative facts. It is required to mention here that the conduct of the accused cannot be the sole basis for conviction, since it was the case of the prosecution that the accused tried to run away from the spot.
39. As regards meaning of reasonable doubt is concerned, the Hon’ble Apex Court in the case of Zainul VS State of Bihar, with connected appeal reported in 2025 SCC Online SC 2152, has dealt with the aforesaid aspect. Relevant para would be para 81, which reads as follows:
“81. In Ramakant Rai v. Madan Rai, reported in (2003) 12 SCC 395, this Court explained the meaning of “reasonable doubt”. It means doubts that are free from abstract speculation, not the result of an emotional response, and actual and substantial doubts about the accused person's guilt, not vague apprehensions. It cannot be an imaginary, trivial or a possible doubt, but a doubt based upon reason and common sense. The relevant observations have been reproduced below:-
“23. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond a reasonable doubt. Though this standard is higher, there is no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to (sic) of probability amounts to “proof” is an exercise, the interdependence of evidence and the confirmation of one piece of evidence by another, as learned author says : [see The Mathematics of Proof II: Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)] “The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.”
24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
25. The concepts of probability and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond a reasonable doubt.
There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection afforded by the criminal process to accused persons is not to be eroded, the uninformed legitimisation of trivialities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302: 1988 SCC (Cri) 928: AIR 1988 SC 2154] .”
40. The doubt would be called reasonable if it is free from the zest for obstructing speculation. It means doubts that are free from abstract speculation, not the result of an emotional response, and actual and substantial doubts about the accused person's guilt, not vague apprehensions. It cannot be an imaginary, trivial or a possible doubt, but a doubt based upon reason and common sense.
41. The question is whether the accused was present at the scene of the incident. The testimony of PW-1 further shows that the accused was present on the spot. Though the defence has contended that his testimony should be ignored because he is hostile, the law in this regard is very clear that it is not the mandate that the entire testimony of the hostile witness is required to be ignored. Still, due care and caution being expected to be taken. While appreciating the testimony, the court will have to see whether there is corroboration of the said testimony. PW-1 stated that the accused was present on the spot, which is corroborated by the testimony of PW-2 and PW-3, who had categorically stated that they had tied the accused to the tree.
42. The question is also whether the accused was having weapon in his hand, at the time of incident. PW-1, father of the accused, though has turned hostile, in the cross-examination at the instance of the prosecution, has stated “ it is true to suggest that his neighbour had come to the house and they had snatched the axe from the hands of the accused and seen injuries sustained by PW-1’s mother-in-law”.
43. PW-2 and PW-3, who are independent witnesses, have also supported the prosecution's case so far as this aspect is concerned. Though PW-2 has turned hostile as already discussed, a care will have to be taken before relying on his testimony. PW-2, who has stated that when PW-2 and PW-3 reached at the spot, PW-1 and the accused were scuffling, and they rescued them, caught hold of the accused and tied with tree. In cross-examination, he denied that the accused was holding an axe. He admitted that on 02-05- 2016, the police enquired of him and stated that the portion marked A and B in the statement recorded was not correct.
44. PW-3 has categorically stated, in his examination-in- chief, that when they reached, i.e., PW-2 and PW-3, the accused was holding an axe in his hand, and PW-1 caught hold of the axe. He then snatched the axe from the accused and tied him to the tree. This act clearly shows that the accused was carrying axe in his hand.
45. Next circumstance, is whether the said testimony of the witnesses , inspires confidence to award conviction to the accused. In this regard, it is crucial to highlight here that PW-1 has stated that the accused had assaulted him on the leg with a stick. When PW-1 was referred to PW-5/ Dr. Vinod,who after examination, stated that he found blunt trauma over the left knee joint. The age of injury was less than one hour. Injuries sustained by the PW-1 were simple in nature, and the certificate was proved by PW-5 below Exh. 54. the defence did not cross-examine this witness. Thus, the version of PW-1 that he was assaulted by the accused on the leg is corroborated by the testimony of PW-5.
46. Further circumstances are whether the injuries sustained by the deceased were due to the weapon used in the crime, which was the axe. In this regard, it is worth noting that the first persons to reach the incident site were PW-2 and PW-3.
47. PW-3, in his examination-in-chief, has categorically stated that he snatched the axe from the accused and tied him to the tree, and at the spot where PW-2 and PW-3 saw the mother-in-law of PW-1 dead. PW-3 noticed that she sustained two injuries of blows of the axe on her head. PW-1 has stated that PW-2 and PW-3 are the neighbours and they had reached the house and snatched the axe from the hands of the accused and injuries were sustained to his mother-in-law and his mother-in-law had died on the spot.
48. The fact that the accused was carrying the axe, PW-2 and PW-3 snatched it, and the mother-in-law sustained injuries which were grievous, is supported by the testimony of PW-1.
49. An additional factor, i.e. testimony of PW-7 Medical Officer/ Dr Sachin, who on 01-05-2016, after receipt of the letter below Exh. 20 and inquest panchanama below Exh. 21, conducted the postmortem on the dead body of mother-in-law of PW-1 and after examination he found following four injuries (I) CLW over temporal to ear 7x3x bone deep (ii) CLW over the cheek 3x2x bone deep, (iii) fracture of the mandible, (IV) fracture of the temporal. He stated that injuries were antemortem and were sufficient to cause death. This witness was shown the muddemal property axe and stated that the injuries were possible with the said weapon. He proved the postmortem report, Exh. 26. This witness was not subjected to cross- examination. The aforesaid fact also clearly shows that the injury was caused due to blow of axe and victim had died as a result of it.
50. There is one more fact which is required to take a note of it. The accused's clothes were seized and proved through the testimony of PW-4, who stated that on 01-05-2016, he, along with Ravindra, was called to the police station, and in their presence, the accused's clothes were seized under the panchanama. The clothes were a full shirt with blue and white lining and blood stains on both sleeves, and black pants. He stated that the clothes were sealed in two packets, and he, along with the other panch, put his signature. The contents of which were admitted to be true by PW-4. The panchanama was below Exh. 50. The clothes were shown to him, which he identified as the same.
51. Even the saree and blouse of the deceased were seized in their presence. A seizure panchanama of the same was prepared (Exh. 25), which PW-4 signed, and the contents were found to be true. Those clothes were sealed separately, and signatures were also found on them. In the cross-examination, this witness has admitted that he had acted as a panch in other cases registered at the same police station. So, the police informed him to whom the clothes belonged, and thereafter he signed. It was also admitted that the accused was not present in their presence on that day. He denied other suggestions.
52. PW-8 is the Investigating Officer who has deposed in his testimony that he received the information regarding the murder and thereafter took entry in the station diary, reached to the spot, and found dead body of the victim in the pool of blood and therefore, prepared inqeust panchanama by summoning two persons. He stated that the statement of PW-1, who narrated the incident, was recorded on 01-05-2026, as shown in Exh. 63 below. He prepared the spot panchanama. The house consists of four rooms. Two rooms facing West and two rooms facing North. In front of these rooms, there is a platform (Oata). At the door of the West side room, an axe and a stick were lying, and they were seized in the presence of the panchas. He also seized the blood-mixed soil, simple soil from the spot. The hair found with the axe was also seized. The spot and seizure panchanama was shown to him below Exh. 24, the contents of which were correct, and he put his signature. He sent the seized Muddemal property for chemical analysis through the carrier Chavan by giving the letter below Exh. 31.
53. In cross-examination, the challenge to the seizure of the clothes and their forwarding to the laboratory was not even raised. In this background, if Exh. 35/ CA report dated 31-03-2017 is seen, in which the description of Articles is given. The axe was found with the blood stains, and the full pant of the deceased had two blood stains, each about 1 cm in diameter, on the lower portion of the left leg. Saree had a considerable number of blood stains, ranging from about 0.5 cm in diameter to large, mostly at one end. The blouse had a moderate number of blood stains, ranging from about 0.5 cm in diameter to large, spread at various places. The blood was not detected on the wooden stick, the earth wrapped, the hair wrapped, or the accused's full-open shirt. Blood detected on axe, earth wrapped, full pant, saree and blouse which was of “A” blood group. The origin of the hair in Exh. 5 could not be determined, as the results are inconclusive.
54. Exh. 36 report of the laboratory dated 31-03-2017 shows that the blood group of the deceased was ‘A’. Exh. 37 shows that the accused's blood group was also ‘A’.
55. Hence, it is crystal clear that on the axe, full pant, Saree and blouse, blood group ‘A’ was found. Since the blood group of both the victim and the accused is of the same group, whether the prosecution can rely upon the same, needs no further elaboration, since nothing has been brought on record to show that the accused had sustained any injuries on his person due to which his clothes were stained with the blood. Thus, even the CA report supports the prosecution's case.
56. The question whether it was the accused who was the author of the crime or not thus stands answered in the light of the parameters laid down by the Hon’ble Apex Court in the Case of Sharad Badrichand Sarda discussed (supra) and in the case of Zainul (supra). One of the factors is that the circumstances should be of conclusive nature, and the chain of evidence should be so complete as not to lead to any reasonable ground for a conclusion inconsistent with the innocence of the accused, and must show that, in all human probability, the act was committed by the accused.
57. In this background, again, if the testimony of witnesses is taken into consideration, it would reveal that the presence of the accused is not disputed. At the spot of the incident, the weapon was snatched away from the hands of the accused. The injury sustained by the victim was also due to the axe, which is also supported by the testimony of PW-7. The victim was lying at the spot of the incident, as is clear from the testimony of PW-3. The testimony of PW-5 corroborates the fact that the accused had assaulted PW-1. All these factors, including the fact that the accused was tied to a tree, clearly show, in all human probability, that it was the accused who committed the offence.
58. Thus, I conclude that by way of circumstantial evidence, the guilt of the accused is proved by the prosecution beyond a reasonable doubt. The presence of the accused at the scene of the incident is not at all disputed, and only the plea of insanity is sought to be brought on record. As already stated, reasonable doubt means a doubt that is not based on emotion.
59. In that view of the matter, I conclude that the appeal has no merit. Therefore, the appeal stands dismissed.
60. At this stage, it needs to be stated that the learned Advocate appointed to represent the accused, without seeking any time, had argued the matter by pointing out various favourable circumstances in favour of the accused. His fees be quantified by the High Court Legal Aid Services Sub-Committee, Aurangabad, as per the rules.
61. In view of dismissal of the appeal, the pending applications, if any stand dismissed.