SANJAY NAGORAO POTE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Criminal Appeal, the appellantSanjay has challenged the judgment of the Adhoc Sessions Judge, Chandrapur dated 12.4.2016 in Sessions Case No.13 of 2015 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.1, 000/ and indefault of the payment of fine to undergo rigorous imprisonment for three months. The appellant is also convicted for the offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/ and indefault of the payment of fine to undergo rigorous imprisonment for one month.

(2.) According to the prosecution case, Ramdas Govinda Pote, who is the paternal uncle of appellant Sanjay had lodged a report on 17.10.2014 stating therein that he was residing in his house with his wife Shakuntala, son Vitthal, daughterinlaw Manisha and granddaughter Suhani. According to Ramdas, one of his daughters was married and was residing in her matrimonial home and his other son was residing at Rampur. It is stated that his younger son viz. Vitthal used to reside with him with his family and used to run a Kirana Shop.

(3.) Shri Jaltare, the learned counsel for appellant Sanjay, submitted that it is apparent from the evidence on record that Sanjay was not of sound mind and was not capable of knowing the nature of the act that was committed by him in the midnight between 16.10.2014 and 17.10.2014. It is stated that the case of appellant Sanjay would be governed by section 85 of the Penal Code that provides that nothing is an offence which is done by a person who, at the time of doing it is by reason of unsoundness of mind, incapable of knowing the nature of the act that he is doing. It is stated that no doubt the burden of proving the plea of insanity is on the accused himself but the accused is entitled to discharge the burden either on the basis of the evidence tendered by him or by relying on the evidence of the prosecution that supports him in proving his case. It is submitted that the admissions of Ramdas, in his crossexamination would clearly shows that Sanjay was behaving like an abnormal person from about 10 to 12 days before 16.10.2014 and he was committing such acts which could show that he was not mentally sound at the relevant time. It is stated that it could be gathered from the prosecution story that Sanjay was incapable of understanding the nature of the act which he was doing on 16.10.2014, as a result of which Vitthal had died. It is submitted that it is apparent from the evidence of Ramdas that Sanjay had entered into the house of Ramdas at 1.00 O'clock in the midnight shouting that he was a Godly person and that he wanted to remove the ghost from the house of Ramdas. It is stated that Sanjay then operated the motorpump affixed to the well, drenched all the family members of Ramdas with water, thrust the water pipe in the mouth of Vitthal, sat on his chest and shouted that he was removing the ghost. It is stated that the prosecution has not proved that Sanjay either had the intention to kill Vitthal or that he had a motive to kill him. It is stated that in the absence of any proof in this regard, it is necessary to hold on the basis of the prosecution case itself that Sanjay was not capable of understanding the nature of the act committed by him in the midnight between 16.10.2014 and 17.10.2014. It is submitted that it could be gathered from the first information report, as also the evidence of Ramdas that there was no enmity between the family members of Ramdas and the family members of Nagorao. It is submitted that in the absence of any enmity or quarrel between the two brothers namely Ramdas and Nagorao and their family, it cannot be said that Sanjay had the motive or the intention to kill Vitthal. It is submitted that the evidence of DW1 Dr. Imran Ali was not appreciated by the trial court in the right perspective. It is submitted that it is apparent from the evidence of Imran Ali and the admissions of Ramdas in his crossexamination that Sanjay was not mentally sound when he committed the act on 16.10.2014 and he was not capable of understanding the nature of the act that he was doing. It is submitted that though the trial court has referred to several reported judgments, it has failed to appreciate the evidence tendered by the prosecution and the defence in a proper manner. It is submitted that the trial court has unnecessarily given undue weightage to the behaviour of Sanjay during the trial, though his behaviour, at the time of the trial, would not be relevant for deciding the question, whether he was not of sound mind at the relevant time when he committed the act. It is stated that the fact that neither Ramdas nor his family members had prevented Sanjay from slapping them, drenching them with water or thrusting the water pipe in the mouth of Vitthal or would clearly show that they were also aware that Sanjay was not behaving like a normal person for more than 10 to 12 days, as is alleged by the prosecution. The learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar .vs. State of Gujarat, (1964) AIR SC 1563, to substantiate his submission. It is submitted that even assuming that Sanjay was of sound mind and was mentally fit at the time of commission of the crime, still the prosecution has utterly failed to prove that he had intended to commit the offence of culpable homicide. It is stated that it is not the case of the prosecution that Sanjay had with the intention of causing the death of Vitthal, thrust the water pipe in his mouth.