STATE OF MAHARASHTRA Vs. UMESH KRISHNA PAWAR

JUDGEMENT

(1.) ON 5-1-1988, a most gruesome, horryfying and reprehensible incident took place at about 4. 30 p. m. at village Gojegaon in Satara District, when a child by the name of Savita Balwant Ghorpade aged hardly 4 years was taken to a lonely place and raped by a young man who ostensibly claimed to be of unsound mind. It is alleged that the accused Umesh Krishna Pawar who is an agriculturist by profession had picked up this girl and taken her on his bicycle to a lonely place near the canal. At that spot he is alleged to have sexually assaulted Savita after which he lifted up the unclothed girl and threw her into the canal. It so happened that just at that point of time P. W. 7 Prakash Khandale happened to have witnessed the incident and on seeing the child being thrown into the canal he raised an alarm. Two of the villagers who were close-by in a bullock cart were immediately alerted. One of them not only jumped into the water and saved the life of the young girl by taking her out, but they also chased the accused who attempted to run away and apprehended him. Both of them were brought to the village and subsequently the grand-father of the girl P. W. 2 Tukaram Ghorpade lodged a complaint at the Satara Police Station. The Police authorities commenced their investigations and sent the minor girl as also the accused to the hospital for medical examination. The clothes of the accused and the underwear of the girl were taken charge of under a panchanama and sent to the Chemical Analyser. On completion of the investigation, the accused was put up for trial and the learned 3rd Additional Sessions Judge, Satara, found the accused guilty of all the five charges and convicted and sentended him as follows. For the offence under section 376 I. P. C. , he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default rigorous imprisonment for three months; for the offence under section 366 I. P. C. , he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default rigorous imprisonment for three months, for the offence under section 307 I. P. C. , he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default rigorous imprisonment for three months. As far as the offence under section 323 is concerned, he was awarded a sentence of rigorous imprisonment for three months and for the offence under section 57 of the Bombay Childrens Act, he was awarded a sentence of rigorous imprisonment for three months. All the substantive sentences were ordered to run concurrently. The judgment in question was pronounced on 31st December, 1991 and we find from the record that the appellant has not preferred any appeal against the convictions and sentences. The State of Maharashtra, however, having regard to the horrendous nature of the offence, has preferred this appeal for enhancement of sentence.

(2.) MRS. Randive, the learned A. P. P. has taken us through the evidence on record, as also the judgment of the trial Court. She points out that as far as the commission of the offences are concerned, that the evidence is conclusive and that the State is only aggrieved with the quantum of sentence. However, considering the fact that this is an appeal for enhancement and that the learned Counsel appearing on behalf of the respondent-accused is entitled in law to challenge the conviction itself, the learned A. P. P. has taken us through the entire set of depositions as also the documentary evidence which consists of the panchanamas, medical evidence and the C. A. report.

(3.) WE need to mention at this stage that the learned trial Judge has discussed the defence that was put forward before him which was to the effect that the accused was a person of unsound mind. Insanity when it is established to the extent that the law requires, is an absolute defence in criminal cases provided the Court is satisfied that the accused at the time when he committed the offence was in such a mental condition that he was unaware of the nature and consequences of his act. The case law as far as such defences are concerned is well crystallised and it is necessary for us to record that the onus of establishing that the accused is covered by an exception namely the fact that he is of unsound mind shifts essentially to the defence. Further more, the case law is very clear with regard to the fact that it must be established that the gravity of the mental illness or ailment is so serious and of such a nature as to disqualify the accused person from being aware of what exactly he is doing and that it must also be demonstrated that he is incapable of being able to distinguish between right and wrong. This burden is a heavy one and unless the burden is fully discharged merely because it is demonstrated that the accused is given to wayward habits or that he has demonstrated pecularities in his behaviour, the law will not take cognizance of such facts nor will he qualify for being declared legally insane. In the present case, before dealing with the prosecution evidence, we would prefer to deal with this aspect of the matter, because it is of some consequence. We have on record the evidence of the two doctors who were examined at the beginning of the trial. The first of them is P. W. 1 Dr. Prafulla Nilkantha Nerlikar who is a Pschyatrist attached to the Yerwada Mental Hospital. This doctor has opined that when she initially examined the accused in June, 1990 that she observed from his mental condition that he was a fit case to be categorised as a lunatic and that she recommended his being admitted to the mental hospital. We also have on record the evidence of another doctor Nirjan Kavare who had examined the accused at more or less the same time i. e. at the beginning of June, 1990. The incident in the present case had taken place in Junary, 1988 and we are essentially concerned with the mental condition of the accused as on the date of the commission of the offence. It is true that these two doctors have opined that the accused appeared to be mentally ill and that it was for this reason that he was admitted to the Mental Hospital. It was on these grounds that the trial against the accused did not proceed because it is equally well settled law that if an accused person is not in a position to stand trial, that the Court ought not to proceed with the trial in such cases as he would not be in a fit condition to instruct his counsel. We have taken cognizance of the fact that the accused was treated at the Mental Hospital and that the Superintendent had thereafter certified that as a result of the treatment to which he responded that he had come back to normally and it was only after this recovery that the trial in the present case has proceeded. As far as the conduct of the trial is concerned, therefore, in our considered view there is no infirmity whatsoever and the learned trial Judge was fully justified in having waited until the accused had recovered from his mental ailment.