DEVIDAS LOKA RATHOD versus STATE OF MAHARASHTRA on 2 July 2018

DEVIDAS LOKA RATHOD

v.

STATE OF MAHARASHTRA

(Criminal Appeal No. 814 of 2017)

JULY 02, 2018

[A. M. KHANWILKAR AND NAVIN SINHA, JJ.]

Penal Code, 1860 – ss. 302, 324 and 84 – Murder – Plea ofunsound mind – Prosecution case that appellant assaulted few withsickle, which resulted in death of one – Appellant then tried to fleefrom the place of occurrence after throwing the weapon but wasapprehended by villagers – Plea of unsoundness of mind byappellant – Rejected by the courts below and conviction of theappellant u/ss. 302, 324 – On appeal, held: In view of the previoushistory of insanity of the appellant, it was the duty of the investigatorto subject the accused to medical examination immediately and placethe evidence before the court – Prosecution deliberately withheldrelevant evidence with regard to the nature of the appellant’s mentalillness, his mental condition at the time of assault, requiringhospitalization immediately after the assault and hindering his arrest,the diagnosis and treatment, and the evidence of the treating doctor– Courts below erred in proper consideration and appreciation ofevidence, virtually abjuring all such evidence available raisingdoubts about the mental status of the appellant at the time ofcommission of the offence – In view thereof, appellant entitled tobenefit of the exception u/s. 84 because of the preponderance ofhis medical condition at the time of occurrence – Prosecution cannotbe said to have established its case beyond all reasonable doubt –Thus, appellant entitled to benefit of doubt and is acquitted.

Allowing the appeal, the Court

HELD: 1.1 P.W.14-sub inspector, in his examination-in-chief, stated that the appellant was caught immediately after hemade the assault and brought to the police station. The FIR wasregistered the same day. But the appellant was taken in custodytwo days later because he was not keeping well and had beenadmitted in the hospital. The information of his arrest was not

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Agiven to his sister or mother, but only to his friend who has notbeen examined. In view of the previous history of insanity of theappellant as revealed, it was the duty of an honest investigator tosubject the accused to a medical examination immediately andplace the evidence before the court and if this is not done, itcreates a serious infirmity in the prosecution case and the benefitBof doubt has to be given to the accused. The admitted facts in theinstant case strongly persuades to believe that the prosecutionhad deliberately withheld relevant evidence with regard to thenature of the appellant’s mental illness, his mental condition atthe time of assault, requiring hospitalization immediately afterCthe assault and hindering his arrest, the diagnosis and treatment,the evidence of the treating doctor, all of which necessarily castsa doubt on the credibility of the prosecution evidence raisingmore than reasonable doubts about the mental condition of theappellant. Unfortunately, both the trial court and the High Court,have completely failed to consider and discuss this very importantDlacuna in the prosecution case, decisively crucial for determinationor abjurement of the guilt of the appellant. [Para 9][774-A-E]

1.2 The law presumes that every person committing anoffence is sane and liable for his acts, though in specifiedcircumstances it may be rebuttable. Section 84 IPC carves outEan exception, that an act will not be an offence, if done by a person,who at the time of doing the same, by reason of unsoundness ofmind, is incapable of knowing the nature of the act, or what he isdoing is either wrong or contrary to law. But this onus on theaccused, under Section 105 of the Evidence Act is not as stringentFas on the prosecution to be established beyond all reasonabledoubts. The accused has only to establish his defence on apreponderance of probability, after which the onus shall shift onthe prosecution to establish the inapplicability of the exception.But, it is not every and any plea of unsoundness of mind that willsuffice. The standard of test to be applied shall be of legal insanityGand not medical insanity. [Paras 10, 11][774-E-F; 775-C-E]

1.3 The crucial point of time for considering the defenceplea of unsoundness of mind has to be with regard to the mentalstate of the accused at the time the offence was committed collatedfrom evidence of conduct which preceded, attended and followedH

the crime. If from the materials placed on record, a reasonabledoubt is created in the mind of the Court with regard to the mentalcondition of the accused at the time of occurrence, he shall beentitled to the benefit of the reasonable doubt and consequentacquittal. [Paras 12, 13][775-G-H; 776-C-D]

1.4 Merely because an injured witness, who may legitimatelybe classified as an interested witness for obvious reasons, mayhave stated that the appellant was not of unsound mind, cannotabsolve the primary duty of the prosecution to establish its casebeyond all reasonable doubt explaining why the plea forunsoundness of mind taken by the accused was untenable. [Para14][776-E-F]

1.5 The trial court records reflect several medical visits inprison, even weekly, 12 in number, administering of antipsychoticdrugs to the appellant with the impression recorded by the doctorthat the patient is psychotic and needs continuation of treatment.The significance of use of the words “continuation” cannot belost sight of, and has obviously been used with regard to a pre-existing ailment. Thereafter, an application was moved on behalfof the appellant that he was not fit to face trial. A fresh medicalreport was called for which opined that the appellant was a chronicpatient of psychotics who has been evaluated time and again bythe Mental Hospital. Thereafter, the trial court directed him tobe sent to the Mental Hospital and called for a fresh report. Theappellant was prescribed Trinicalm Forte/Trinicalm Plus tabletamongst other medicines. [Para 15][776-F-H; 777-A-B]

1.6 The doctor deposed that he had no materials withregard to the previous history of the appellant, that none of hisrelatives were present at the time of such examination, and hecould not therefore say anything regarding any pre-existingmental disorder of the appellant. D.W.1, the sister of the appellant,and his mother D.W.2, stated that the appellant had to be tied upat times and was unable to take care of himself, including clothingon his person. The prosecution did not deny the fact of a treatingPsychiatrist mentioned by the witness. The appellant and hisfamily were poor people and could hardly be expected tometiculously preserve medical papers or lead expert evidence.Merely because five years later in the witness box the witness A

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Amay have stated that there was no complaint from the police withregard to the conduct of the appellant in custody, the trial judgemanifestly erred in his conclusion with regard to the mental stateof the appellant at the time of occurrence by testing it on thetouchstone of the present demenaour in court and present conductof the appellant, without any reference to the medication thatBwas being provided to the appellant while in custody. Naturally, ifthe appellant was being provided proper medical treatment duringcustody, his condition would certainly improve over time. [Paras17, 18][778-F-H; 779-A-B]

1.7 The trial judge erred in proper consideration andCappreciation of evidence, virtually abjuring all such evidenceavailable raising doubts about the mental status of the appellantat the time of commission of the offence, so as to leave hisconviction as a foregone conclusion. The trial judge unfortunatelydid not consider it necessary to put further questions to P.W.14

Dwith regard to the hospitalisation of the appellant immediatelyafter the occurrence and why the prosecution had not placed thenecessary evidence in this regard before the court. The trial judgethus, erred in her duty. Appellate Court also had a duty to considerthe nature of the evidence led by PW14 and the other medicalevidence available on record with regard to the appellant.EUnfortunately, it appears that the appellate court also did not delveinto the records in the manner required. [Paras 19, 20][779-B-D; 780-A-B]

State of Rajasthan v. Ani alias Hanif and ors [1997]1 SCR 199 : (1997) 6 SCC 162; Rama and others v.FState of Rajasthan (2002) 4 SCC 571 – referred to.

1.8 Appellant has been able to create sufficient doubt inmind that he is entitled to the benefit of the exception undersection 84 IPC because of the preponderance of his medicalcondition at the time of occurrence, as revealed from the materialsGand evidence on record. The prosecution cannot be said to haveestablished its case beyond all reasonable doubt. The appellantis therefore entitled to the benefit of doubt and consequentacquittal. [Para 21][780-D-E]

Dahyabhai Chhaganbhai Thakker v. State of GujaratH[1964] 7 SCR 361; Elavarasan v. State represented by Inspector of Police [2011] 10 SCR 1147 : (2011) 7 SCC110; Deepak Kumar v. Ravi Virmani and another [2002]1 SCR 786 : (2002) 2 SCC 737; Bapu vs. State ofRajasthan [2007] 7 SCR 917 : (2007) 8 SCC 66;Dahyabhai Chhaganbhai Thakkar v. State of Gujarat(1964) 7 SCR 361; Surendra Mishra vs. State ofJharkhand [2011] 1 SCR 133 : (2011) 11 SCC 495;State of Rajasthan v. Shera Ram [2011] 15 SCR 485:(2012) 1 SCC 602; Ratan Lal v. State of MadhyaPradesh [1971] 3 SCR 251 : (1970) 3 SCC 533;Vijayee Singh v. State of U.P. [1990] 2 SCR 573 : (1990)3 SCC 190 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.814 of 2017.

From the Judgment and Order dated 05.05.2014 of the High Courtof Judicature at Bombay, Bench at Nagpur in Criminal Appeal No. 360Gof 2011.

Ms. Aparna Jha, Braj Kishore Mishra and Ms. M. P. Sahay, Advs.for the Appellant.

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AMr. Nishant Ramakantrao Katneshwarkar, Adv. for theRespondent.

The Judgment of the Court was delivered by NAVIN SINHA, J. 1. The appellant assails his conviction underSection 302 and 324 of the Indian Penal Code (IPC), rejecting his defenceBthat he was of unsound mind.

2. In the morning of 26.09.2006, the appellant suddenly picked upa sickle from the shop floor of the iron smith and attempted to assaultGulab Pawar (P.W.11), but which injured Santosh Jadhav (P.W.5) onthe jaw and cheek and gave a further blow on his shoulder. The sameCday, he later assaulted Ulhas Rathor (P.W.3) on his back and neck andrained blows on the back and stomach of the deceased Harish ChandraChauhan, when the latter tried to intervene. The appellant then tried toflee, throwing the sickle enroute, when he was apprehended by thevillagers and handed over to the police.

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3. The Additional Sessions Judge, Akola rejected the defence pleafor unsoundness of mind, citing insufficient evidence relying on theevidence of Dr. Sagar Srikant Chiddalwar (C.W.1) that the appellantwas not mentally sick and fit to face trial. The subsequent conduct ofthe appellant while in custody, his demeanour during the trial, were furtherErelied upon to conclude that the appellant was conscious of his wrongfulacts which were deliberate in nature, evident from the repeated assaultsand running away from the place of occurrence after throwing the sickle.The High Court declined to interfere with the conviction.

4. Ms. Aparna Jha appearing on behalf of the appellant urged thatin absence of any mens rea, conviction under Section 302 I.P.C. wasFunsustainable, relying upon Dahyabhai Chhaganbhai Thakker vs. Stateof Gujarat, 1964 (7) SCR 361. It was next contended that the evidenceof Mankarna Chavan (D.W.1) and Gograbai Rathod (D.W.2), with regardto the unsoundness of mind of the appellant has not been properlyappreciated and wrongly rejected as insufficient. The appellant belongedGto a very poor family and they could not be expected to keep his medicalrecords and prescriptions meticulously. The defence witnesses haddeposed that the appellant was under the treatment of Dr. Kelkar atAkola. There existed sufficient evidence for a plausible defence forunsoundness of mind under Section 84 of the Indian Penal Code read H

with Section 105 of the Evidence Act on a preponderance of theprobability. The prosecution failed to lead any evidence in rebuttal, forwhich reliance was placed on Elavarasan vs. State represented byInspector of Police, 2011 (7) SCC 110. The conviction was, therefore,unjustified and the appellant was entitled to acquittal.

5. Learned counsel for the State, Shri Katneshwarkar, opposingthe appeal, submitted that the appellant had failed to prima facie establisha case for unsoundness of mind on probability. The trial judge had takenadequate precautions in calling for medical reports from time to timeand satisfying himself with regard to the ability of the appellant to defendhimself quite apart from also noticing his demeanour in court. The conductof the appellant in making repeated assaults, running away from theplace of occurrence, throwing the sickle on the way, were all sufficientto establish the commission of the offence knowingly by him, incompatiblewith the defence of unsoundness of mind.

6. We have considered the respective submissions. Normally,this Court is reluctant to interfere with concurrent findings of facts bytwo courts, under Article 136 of the Constitution, as also observed inDeepak Kumar vs. Ravi Virmani and another, 2002 (2) SCC 737.But this does not preclude it in appropriate cases to reappraise evidencein the interest of justice, if it entertains any doubt about the nature ofevidence and its appreciation or non-appreciation. There can be no hardand fast rule in this regard, and much will depend on the concept ofjustice in the facts of a case, coupled with the nature of acceptableevidence on record.

7. The prosecution, including the injured witnesses, undoubtedlydenied that the appellant was of unsound mind. But the evidence ofpolice Sub-Inspector Chandusingh Mohansingh Chavan (P.W.14), coupledwith the reference to the medical reports of the appellant, persuaded usto examine the original records of the trial court ourselves in order tosatisfy us that there had been proper and complete appreciation of allevidence and that the findings were not perverse or obviated by non-consideration of relevant materials, so that justice may ultimately prevail.

8. That the appellant was a very poor person stands establishedby P.W. 14, and which consequently necessitated legal assistance to himfor his defence by the District Legal Services Authority, Akola as alsobefore the High Court and also before this court by the legal aid cell.

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A9. P.W.14, in his examination-in-chief, stated that the appellantwas caught immediately after he made the assault on 26.09.2006 andbrought to the police station. The FIR was registered the same day. Butthe appellant was taken in custody only on 28.09.2006 because he wasnot keeping well and had been admitted in the hospital. The informationof his arrest was not given to his sister or mother, but only to his friendBNagorao Baghe, who has not been examined. In view of the previoushistory of insanity of the appellant as revealed, it was the duty of anhonest investigator to subject the accused to a medical examinationimmediately and place the evidence before the court and if this is notdone, it creates a serious infirmity in the prosecution case and the benefitCof doubt has to be given to the accused, as observed in Bapu vs. Stateof Rajasthan,(2007) 8 SCC 66. The admitted facts in the present casestrongly persuades us to believe that the prosecution has deliberatelywithheld relevant evidence with regard to the nature of the appellant’smental illness, his mental condition at the time of assault, requiringhospitalization immediately after the assault and hindering his arrest, theDdiagnosis and treatment, the evidence of the treating doctor, all of whichnecessarily casts a doubt on the credibility of the prosecution evidenceraising more than reasonable doubts about the mental condition of theappellant. Unfortunately, both the trial court and the High Court, havecompletely failed to consider and discuss this very important lacuna inEthe prosecution case, decisively crucial for determination or abjurementof the guilt of the appellant.

10. The law undoubtedly presumes that every person committingan offence is sane and liable for his acts, though in specified circumstancesit may be rebuttable. The doctrine of burden of proof in the context of Fthe plea of insanity was stated as follows in Dahyabhai ChhaganbhaiThakkar v. State of Gujarat, (1964) 7 SCR 361 :

“(1) The prosecution must prove beyond reasonable doubt thatthe accused had committed the offence with the requisite mensrea, and the burden of proving that always rests on the prosecutionGfrom the beginning to the end of the trial.

(2) There is a rebuttable presumption that the accused was notinsane, when he committed the crime, in the sense laid down bySection 84 of the Indian Penal Code: the accused may rebut it byplacing before the court all the relevant evidence oral, documentary H

DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA[NAVIN SINHA, J.]

or circumstantial, but the burden of proof upon him is no higherthan that rests upon a party to civil proceedings.

(3) Even if the accused was not able to establish conclusivelythat he was insane at the time he committed the offence, theevidence placed before the court by the accused or by theprosecution may raise a reasonable doubt in the mind of the courtas regards one or more of the ingredients of the offence, includingmens rea of the accused and in that case the court would beentitled to acquit the accused on the ground that the general burdenof proof resting on the prosecution was not discharged.”

11. Section 84 of the IPC carves out an exception, that an act willnot be an offence, if done by a person, who at the time of doing thesame, by reason of unsoundness of mind, is incapable of knowing thenature 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 isnot as stringent as on the prosecution to be established beyond allreasonable doubts. The accused has only to establish his defence on apreponderance of probability, as observed in Surendra Mishra vs. Stateof Jharkhand, (2011) 11 SCC 495, after which the onus shall shift onthe prosecution to establish the inapplicability of the exception. But, it isnot every and any plea of unsoundness of mind that will suffice. Thestandard of test to be applied shall be of legal insanity and not medicalinsanity, as observed in State of Rajasthan vs. Shera Ram, (2012) 1SCC 602, as follows :

“19. ……..Once, a person is found to be suffering from mentaldisorder or mental deficiency, which takes within its ambithallucinations, dementia, loss of memory and self-control, at allrelevant times by way of appropriate documentary and oralevidence, the person concerned would be entitled to seek resortto the general exceptions from criminal liability.”

12. The crucial point of time for considering the defence plea ofunsoundness of mind has to be with regard to the mental state of theaccused at the time the offence was committed collated from evidenceof conduct which preceded, attended and followed the crime as observedin Ratan Lal vs. State of Madhya Pradesh, (1970) 3 SCC 533, asfollows:

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SUPREME COURT REPORTS

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A“2. It is now well-settled that the crucial point of time at whichunsoundness of mind should be established is the time when thecrime is actually committed and the burden of proving this ties onthe accused. In D.G. Thakker v. State of Gujarat it was laiddown that “there is a rebuttable presumption that the accusedwas not insane, when he committed the crime, in the sense laidBdown by Section 84 of the Indian Penal Code, the accused mayrebut it by placing before the Court all the relevant evidence –oral, documentary or circumstantial, but the burden of proof uponhim is no higher than that which rests upon a party to civilproceedings”.

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13. If from the materials placed on record, a reasonable doubt iscreated in the mind of the Court with regard to the mental condition ofthe accused at the time of occurrence, he shall be entitled to the benefitof the reasonable doubt and consequent acquittal, as observed in VijayeeSingh vs. State of U.P., (1990) 3 SCC 190.

D14. We shall now consider the sufficiency of other medical anddefence evidence to examine if a reasonable doubt is created with regardto the mental state of the appellant at the time of commission of theassault on a preponderance of probability, coupled with the completelack of consideration of the evidence of P.W.14. Merely because anEinjured witness, who may legitimately be classified as an interestedwitness for obvious reasons, may have stated that the appellant was notof unsound mind, cannot absolve the primary duty of the prosecution toestablish its case beyond all reasonable doubt explaining why the pleafor unsoundness of mind taken by the accused was untenable.

F15. The accused was taken into custody on 28.09.2006. Charge-sheet was submitted on 29.12.2006 and commitment done on 16.02.2007.The Trial Court records reflect several medical visits in prison, evenweekly, 12 in number, between the period from 09.01.2007 to 07.04.2007,administering of antipsychotic drugs such as tablet Haloperidol and tabletOlanzapine and tablet Diazepam to the appellant with the impressionGrecorded by the Doctor that the patient is psychotic and needscontinuation of treatment. The significance of use of the words“continuation” cannot be lost sight of, and has obviously been used withregard to a pre-existing ailment and which includes the period prior toand from 26.09.2006 to 28.09.2006. On 03.05.2007, an application wasHmoved on behalf of the appellant under Chapter-XXV of the Code of Criminal Procedure that he was not fit to face trial. A fresh medicalreport was called for on 14.06.2007 which opined on 19.06.2007 that theappellant was a chronic patient of psychotics who has been evaluatedtime and again by the Mental Hospital, Nagpur, the present doctor atAkola and also by the Psychiatrist. On 13.07.2007, the Trial Courtdirected him to be sent to the Mental Hospital and called for a freshreport. On 11.04.2008, fresh report was called for and the appellantwas prescribed Trinicalm Forte tablet/Trinicalm Plus tablet amongst othermedicines. The treating Doctor, Dr. Pramod Thakare, opined in writingon 20.05.2009 as follows:

“1) Above named prisoner is suffering from mental illness(psychosis) since unknown duration. He is being treated andexamined by several psychiatrists attached to Govt. MedicalCollege and Hospital, Akola since January 2008 during specialistsvisit to prison.

2) This prisoner showed suicidal tendency, aggressive behavior,disturb sleep, poor communication and occasional erratic behavior.

3) He was treated with a various antipsychotic drugs since January2008 till today.

…..At present he is under control with antipsychotic drugs and isstill maintained on drugs. He may be referred to Mental Hospital,Nagpur for further investigations and expert opinion, for furtherproceedings.”

16. The nature of illness of the appellant, and its correlation to thenature of treatment required may appropriately be set out as follows:

•Haloperidolis used to treat certain mental/mooddisorders(e.g., schizophrenia, schizoaffective disorders). Thismedicine helps you to think more clearly, feel less nervous, andtake part in everyday life. It can also help prevent suicidein peoplewho are likely to harm themselves. It also reduces aggression andthe desire to hurt others. It can decrease negative thoughtsand hallucinations.

• Olanzapine is an antipsychotic medication that affects chemicalsin the brain. Olanzapine is used to treat the symptoms ofpsychotic conditions such as schizophrenia and bipolardisorder (manic depression)

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A• Diazepam is used to treat anxiety, alcohol withdrawal,and seizures. It is also used to relieve muscle spasms and toprovide sedation before medical procedures. This medicationworks by calming the brain and nerves. Diazepam belongs to aclass of drugs known as benzodiazepines.

B• Trinicalm Forte Tablet is a combination of three medicines:Chlorpromazine, Trihexyphenidyl and Trifluoperazine.Chlorpromazine is a typical antipsychotic. It works by blockingthe action of dopamine, a chemical messenger in the brain thataffects thoughts and mood. Trihexyphenidyl is an ant cholinergicwhich works on the nervous system and corrects some of theCside effects occurring during antipsychotic treatment.Trifluoperazine is a typical antipsychotic. It works by blockingthe action of dopamine, a chemical messenger in the brain thataffects thoughts and mood.

• Trinicalm Plus 5 mg/2 mg Tablet is a combination of twoDmedicines: Trifluoperazine and Trihexyphenidyl. Trifluoperazineis a typical antipsychotic. It works by blocking the action of achemical messenger (dopamine) in the brain that affects thoughtsand mood. However, it may cause side effects such asinvoluntary movements (shaking of hands, muscle spasms).ETrihexyphenidyl is added to treat and prevent these side effects.

17. C.W.1 was also examined by the defence as D.W.3 anddeposed that he had no materials with regard to the previous history ofthe appellant, that none of his relatives were present at the time of suchexamination, and he could not therefore say anything regarding any pre-Fexisting mental disorder of the appellant.

18. D.W.1, the sister of the appellant, and his mother D.W.2, hadstated that the appellant had to be tied up at times and was unable totake care of himself, including clothing on his person. The prosecutiondid not deny the fact of a treating Psychiatrist at Akola, by the name ofGDr. Kelkar, mentioned by the witness. The appellant and his family werepoor people and could hardly be expected to meticulously preserve medicalpapers or lead expert evidence as observed in Ratan Lal (supra). Merelybecause five years later in the witness box the witness may have statedthat there was no complaint from the police with regard to the conductof the appellant in custody, the trial judge manifestly erred in his conclusionH

with regard to the mental state of the appellant at the time of occurrenceby testing it on the touchstone of the present demenaour in court andpresent conduct of the appellant, without any reference to the medicationthat was being provided to the appellant while in custody. Naturally, ifthe appellant was being provided proper medical treatment during custody,his condition would certainly improve over time.

19. The trial judge erred in proper consideration and appreciationof evidence, virtually abjuring all such evidence available raising doubtsabout the mental status of the appellant at the time of commission of theoffence, so as to leave his conviction as a foregone conclusion. The trialjudge unfortunately did not consider it necessary to put further questionsto P.W.14 with regard to the hospitalisation of the appellant immediatelyafter the occurrence and why the prosecution had not placed thenecessary evidence in this regard before the court. The truth thereforeremained elusive, and justice thus became a casualty. The Trial Judgetherefore erred in his duty, as observed in State of Rajasthan vs. Anialias Hanif and others, (1997) 6 SCC 162 as follows:

“12. Reticence may be good in many circumstances, but a Judgeremaining mute during trial is not an ideal situation. A taciturnJudge may be the model caricatured in public mind. But there isnothing wrong in his becoming active or dynamic during trial sothat criminal justice being the end could be achieved. Criminaltrial should not turn out to be a bout or combat between two rivalsides with the Judge performing the role only of a spectator oreven an umpire to pronounce finally who won the race. A Judgeis expected to actively participate in the trial, elicit necessarymaterials from witnesses in the appropriate context which he feelsnecessary for reaching the correct conclusion. There is nothingwhich inhibits his power to put questions to the witnesses, eitherduring chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a Judge feltthat a witness has committed an error or a slip it is the duty of theJudge to ascertain whether it was so, for, to err is human and thechances of erring may accelerate under stress of nervousnessduring cross-examination. Criminal justice is not to be foundedon erroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for trial Judge to remainactive and alert so that errors can be minimized.”

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A20. The Appellate Court also had a duty to consider the nature ofthe evidence led by P.W.14 and the other medical evidence available onrecord with regard to the appellant. Unfortunately, it appears that theAppellate Court also did not delve into the records in the manner required,as observed in Rama and others vs. State of Rajasthan, (2002) 4 SCC571B

“(4) …… It is well settled that in a criminal appeal, a duty isenjoined upon the appellate court to reappraise the evidence itselfand it cannot proceed to dispose of the appeal upon appraisal ofevidence by the trial court alone especially when the appeal hasbeen already admitted and placed for final hearing. UpholdingCsuch a procedure would amount to negation of valuable right ofappeal of an accused, which cannot be permitted under law.”

21. We are therefore of the considered opinion, that the appellanthas been able to create sufficient doubt in our mind that he is entitled tothe benefit of the exception under section 84 I.P.C. because of theDpreponderance of his medical condition at the time of occurrence, asrevealed from the materials and evidence on record. The prosecutioncannot be said to have established its case beyond all reasonable doubt.The appellant is therefore entitled to the benefit of doubt and consequentacquittal. The appeal is allowed. He is directed to be released fromEcustody unless wanted in any other case.

22. In view of our conclusions and findings based on the medicalevidence with regard to the appellant, it is considered necessary to givefurther directions under Section 335 or 339 of the Criminal ProcedureCode, as the case may be, so that the appellant is not exposed to vagariesFand receives proper care and support befitting his right to life underArticle 21 of the Constitution of India. A copy of this order be sent tothe District Legal Services Authority, Akola for the needful.

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Appeal allowed.

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