DEVIDAS LOKA RATHODversusSTATE OF MAHARASHTRA

                          [2018] 7 S.C.R. 767                               767


                    DEVIDAS LOKA RATHOD                                     A
                                   v.
                    STATE OF MAHARASHTRA
                  (Criminal Appeal No. 814 of 2017)
                            JULY 02, 2018                                   B
       [A. M. KHANWILKAR AND NAVIN SINHA, JJ.]
       Penal Code, 1860 – ss. 302, 324 and 84 – Murder – Plea of
unsound mind – Prosecution case that appellant assaulted few with
sickle, which resulted in death of one – Appellant then tried to flee
                                                                            C
from the place of occurrence after throwing the weapon but was
apprehended by villagers – Plea of unsoundness of mind by
appellant – Rejected by the courts below and conviction of the
appellant u/ss. 302, 324 – On appeal, held: In view of the previous
history of insanity of the appellant, it was the duty of the investigator
to subject the accused to medical examination immediately and place         D
the evidence before the court – Prosecution deliberately withheld
relevant evidence with regard to the nature of the appellant’s mental
illness, his mental condition at the time of assault, requiring
hospitalization immediately after the assault and hindering his arrest,
the diagnosis and treatment, and the evidence of the treating doctor
                                                                            E
– Courts below erred in proper consideration and appreciation of
evidence, virtually abjuring all such evidence available raising
doubts about the mental status of the appellant at the time of
commission of the offence – In view thereof, appellant entitled to
benefit of the exception u/s. 84 because of the preponderance of
his medical condition at the time of occurrence – Prosecution cannot        F
be 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 he            G
made the assault and brought to the police station. The FIR was
registered the same day. But the appellant was taken in custody
two days later because he was not keeping well and had been
admitted in the hospital. The information of his arrest was not
                                                                            H
                                  767
768            SUPREME COURT REPORTS                       [2018] 7 S.C.R.


A     given to his sister or mother, but only to his friend who has not
      been examined. In view of the previous history of insanity of the
      appellant as revealed, it was the duty of an honest investigator to
      subject the accused to a medical examination immediately and
      place the evidence before the court and if this is not done, it
      creates a serious infirmity in the prosecution case and the benefit
B
      of doubt has to be given to the accused. The admitted facts in the
      instant case strongly persuades to believe that the prosecution
      had deliberately withheld relevant evidence with regard to the
      nature of the appellant’s mental illness, his mental condition at
      the time of assault, requiring hospitalization immediately after
C     the assault and hindering his arrest, the diagnosis and treatment,
      the evidence of the treating doctor, all of which necessarily casts
      a doubt on the credibility of the prosecution evidence raising
      more than reasonable doubts about the mental condition of the
      appellant. Unfortunately, both the trial court and the High Court,
      have completely failed to consider and discuss this very important
D
      lacuna in the prosecution case, decisively crucial for determination
      or abjurement of the guilt of the appellant. [Para 9][774-A-E]
            1.2 The law presumes that every person committing an
      offence is sane and liable for his acts, though in specified
      circumstances it may be rebuttable. Section 84 IPC carves out
E     an 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 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
F     as on the prosecution to be established beyond all reasonable
      doubts. The accused has only to establish his defence on a
      preponderance of probability, after which the onus shall shift on
      the prosecution to establish the inapplicability 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
G     and not medical insanity. [Paras 10, 11][774-E-F; 775-C-E]
             1.3 The crucial point of time for considering the defence
      plea of unsoundness of mind has to be with regard to the mental
      state of the accused at the time the offence was committed collated
      from evidence of conduct which preceded, attended and followed
H
   DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA                          769


the crime. If from the materials placed on record, a reasonable         A
doubt is created in the mind of the Court with regard to the mental
condition of the accused at the time of occurrence, he shall be
entitled to the benefit of the reasonable doubt and consequent
acquittal. [Paras 12, 13][775-G-H; 776-C-D]
      1.4 Merely because an injured witness, who may legitimately       B
be classified as an interested witness for obvious reasons, may
have stated that the appellant was not of unsound mind, cannot
absolve the primary duty of the prosecution to establish its case
beyond all reasonable doubt explaining why the plea for
unsoundness of mind taken by the accused was untenable. [Para
14][776-E-F]                                                            C

       1.5 The trial court records reflect several medical visits in
prison, even weekly, 12 in number, administering of antipsychotic
drugs to the appellant with the impression recorded by the doctor
that the patient is psychotic and needs continuation of treatment.
The significance of use of the words “continuation” cannot be           D
lost sight of, and has obviously been used with regard to a pre-
existing ailment. Thereafter, an application was moved on behalf
of the appellant that he was not fit to face trial. A fresh medical
report was called for which opined that the appellant was a chronic
patient of psychotics who has been evaluated time and again by          E
the Mental Hospital. Thereafter, the trial court directed him to
be sent to the Mental Hospital and called for a fresh report. The
appellant was prescribed Trinicalm Forte/Trinicalm Plus tablet
amongst other medicines. [Para 15][776-F-H; 777-A-B]
      1.6 The doctor deposed that he had no materials with              F
regard to the previous history of the appellant, that none of his
relatives were present at the time of such examination, and he
could not therefore say anything regarding any pre-existing
mental 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 up
at times and was unable to take care of himself, including clothing     G
on his person. The prosecution did not deny the fact of a treating
Psychiatrist mentioned by the witness. The appellant and his
family were poor people and could hardly be expected to
meticulously preserve medical papers or lead expert evidence.
Merely because five years later in the witness box the witness          H
770            SUPREME COURT REPORTS                      [2018] 7 S.C.R.


A     may have stated that there was no complaint from the police with
      regard to the conduct of the appellant in custody, the trial judge
      manifestly erred in his conclusion with regard to the mental state
      of the appellant at the time of occurrence by testing it on the
      touchstone of the present demenaour in court and present conduct
      of the appellant, without any reference to the medication that
B
      was being provided to the appellant while in custody. Naturally, if
      the appellant was being provided proper medical treatment during
      custody, his condition would certainly improve over time. [Paras
      17, 18][778-F-H; 779-A-B]
             1.7 The trial judge erred in proper consideration and
C     appreciation of evidence, virtually abjuring all such evidence
      available raising doubts about the mental status of the appellant
      at the time of commission of the offence, so as to leave his
      conviction as a foregone conclusion. The trial judge unfortunately
      did not consider it necessary to put further questions to P.W.14
D     with regard to the hospitalisation of the appellant immediately
      after the occurrence and why the prosecution had not placed the
      necessary evidence in this regard before the court. The trial judge
      thus, erred in her duty. Appellate Court also had a duty to consider
      the nature of the evidence led by PW14 and the other medical
      evidence available on record with regard to the appellant.
E     Unfortunately, it appears that the appellate court also did not delve
      into 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.
F           State of Rajasthan (2002) 4 SCC 571 – referred to.
            1.8 Appellant has been able to create sufficient doubt in
      mind that he is entitled to the benefit of the exception under
      section 84 IPC because of the preponderance of his medical
      condition at the time of occurrence, as revealed from the materials
G     and evidence on record. The prosecution cannot be said to have
      established its case beyond all reasonable doubt. The appellant
      is therefore entitled to the benefit of doubt and consequent
      acquittal. [Para 21][780-D-E]
            Dahyabhai Chhaganbhai Thakker v. State of Gujarat
H           [1964] 7 SCR 361; Elavarasan v. State represented by
   DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA                          771


      Inspector of Police [2011] 10 SCR 1147 : (2011) 7 SCC             A
      110; Deepak Kumar v. Ravi Virmani and another [2002]
      1 SCR 786 : (2002) 2 SCC 737; Bapu vs. State of
      Rajasthan [2007] 7 SCR 917 : (2007) 8 SCC 66;
      Dahyabhai Chhaganbhai Thakkar v. State of Gujarat
      (1964) 7 SCR 361; Surendra Mishra vs. State of
                                                                        B
      Jharkhand [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 Madhya
      Pradesh [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.                                          C
                       Case Law Reference
      [1964] 7 SCR 361                 referred to     Para 4
      [2011] 10 SCR 1147               referred to     Para 4
      [2002] 1 SCR 786                 referred to     Para 6           D
      [2007] 7 SCR 917                 referred to     Para 9
      [1964] 7 SCR 361                 referred to     Para 10
      [2011] 1 SCR 133                 referred to     Para 11
      [2011] 15 SCR 485                referred to     Para 11          E

      [1971] 3 SCR 25                  referred to     Para 12
      [1990] 2 SCR 573                 referred to     Para 13
      [1997] 1 SCR 199                 referred to     Para 19
                                                                        F
      (2002) 4 SCC 571                 referred to     Para 20
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
814 of 2017.
      From the Judgment and Order dated 05.05.2014 of the High Court
of Judicature at Bombay, Bench at Nagpur in Criminal Appeal No. 360     G
of 2011.
       Ms. Aparna Jha, Braj Kishore Mishra and Ms. M. P. Sahay, Advs.
for the Appellant.

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772             SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A          Mr. Nishant Ramakantrao Katneshwarkar, Adv. for the
      Respondent.
            The Judgment of the Court was delivered by
             NAVIN SINHA, J. 1. The appellant assails his conviction under
      Section 302 and 324 of the Indian Penal Code (IPC), rejecting his defence
B     that he was of unsound mind.
             2. In the morning of 26.09.2006, the appellant suddenly picked up
      a sickle from the shop floor of the iron smith and attempted to assault
      Gulab Pawar (P.W.11), but which injured Santosh Jadhav (P.W.5) on
      the jaw and cheek and gave a further blow on his shoulder. The same
C     day, he later assaulted Ulhas Rathor (P.W.3) on his back and neck and
      rained blows on the back and stomach of the deceased Harish Chandra
      Chauhan, when the latter tried to intervene. The appellant then tried to
      flee, throwing the sickle enroute, when he was apprehended by the
      villagers and handed over to the police.
D            3. The Additional Sessions Judge, Akola rejected the defence plea
      for unsoundness of mind, citing insufficient evidence relying on the
      evidence of Dr. Sagar Srikant Chiddalwar (C.W.1) that the appellant
      was not mentally sick and fit to face trial. The subsequent conduct of
      the appellant while in custody, his demeanour during the trial, were further
E     relied upon to conclude that the appellant was conscious of his wrongful
      acts which were deliberate in nature, evident from the repeated assaults
      and 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 that
F     in absence of any mens rea, conviction under Section 302 I.P.C. was
      unsustainable, relying upon Dahyabhai Chhaganbhai Thakker vs. State
      of Gujarat, 1964 (7) SCR 361. It was next contended that the evidence
      of Mankarna Chavan (D.W.1) and Gograbai Rathod (D.W.2), with regard
      to the unsoundness of mind of the appellant has not been properly
      appreciated and wrongly rejected as insufficient. The appellant belonged
G     to a very poor family and they could not be expected to keep his medical
      records and prescriptions meticulously. The defence witnesses had
      deposed that the appellant was under the treatment of Dr. Kelkar at
      Akola. There existed sufficient evidence for a plausible defence for
      unsoundness of mind under Section 84 of the Indian Penal Code read
H
   DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA                                 773
                 [NAVIN SINHA, J.]

with Section 105 of the Evidence Act on a preponderance of the                 A
probability. The prosecution failed to lead any evidence in rebuttal, for
which reliance was placed on Elavarasan vs. State represented by
Inspector 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, opposing          B
the appeal, submitted that the appellant had failed to prima facie establish
a case for unsoundness of mind on probability. The trial judge had taken
adequate precautions in calling for medical reports from time to time
and satisfying himself with regard to the ability of the appellant to defend
himself quite apart from also noticing his demeanour in court. The conduct
of the appellant in making repeated assaults, running away from the            C
place of occurrence, throwing the sickle on the way, were all sufficient
to establish the commission of the offence knowingly by him, incompatible
with 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 by      D
two courts, under Article 136 of the Constitution, as also observed in
Deepak Kumar vs. Ravi Virmani and another, 2002 (2) SCC 737.
But this does not preclude it in appropriate cases to reappraise evidence
in the interest of justice, if it entertains any doubt about the nature of
evidence and its appreciation or non-appreciation. There can be no hard        E
and fast rule in this regard, and much will depend on the concept of
justice in the facts of a case, coupled with the nature of acceptable
evidence on record.
       7. The prosecution, including the injured witnesses, undoubtedly
denied that the appellant was of unsound mind. But the evidence of             F
police Sub-Inspector Chandusingh Mohansingh Chavan (P.W.14), coupled
with the reference to the medical reports of the appellant, persuaded us
to examine the original records of the trial court ourselves in order to
satisfy us that there had been proper and complete appreciation of all
evidence and that the findings were not perverse or obviated by non-
consideration of relevant materials, so that justice may ultimately prevail.   G
       8. That the appellant was a very poor person stands established
by P.W. 14, and which consequently necessitated legal assistance to him
for his defence by the District Legal Services Authority, Akola as also
before the High Court and also before this court by the legal aid cell.
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774             SUPREME COURT REPORTS                            [2018] 7 S.C.R.


A            9. P.W.14, in his examination-in-chief, stated that the appellant
      was caught immediately after he made the assault on 26.09.2006 and
      brought to the police station. The FIR was registered the same day. But
      the appellant was taken in custody only on 28.09.2006 because he was
      not keeping well and had been admitted in the hospital. The information
      of his arrest was not given to his sister or mother, but only to his friend
B
      Nagorao Baghe, who has not been examined. In view of the previous
      history of insanity of the appellant as revealed, it was the duty of an
      honest investigator to subject the accused to a medical examination
      immediately and place the evidence before the court and if this is not
      done, it creates a serious infirmity in the prosecution case and the benefit
C     of doubt has to be given to the accused, as observed in Bapu vs. State
      of Rajasthan,(2007) 8 SCC 66. The admitted facts in the present case
      strongly persuades us to believe that the prosecution has deliberately
      withheld relevant evidence with regard to the nature of the appellant’s
      mental illness, his mental condition at the time of assault, requiring
      hospitalization immediately after the assault and hindering his arrest, the
D
      diagnosis and treatment, the evidence of the treating doctor, all of which
      necessarily casts a doubt on the credibility of the prosecution evidence
      raising more than reasonable doubts about the mental condition of the
      appellant. Unfortunately, both the trial court and the High Court, have
      completely failed to consider and discuss this very important lacuna in
E     the prosecution case, decisively crucial for determination or abjurement
      of the guilt of the appellant.
             10. The law undoubtedly presumes that every person committing
      an offence is sane and liable for his acts, though in specified circumstances
      it may be rebuttable. The doctrine of burden of proof in the context of
F     the plea of insanity was stated as follows in Dahyabhai Chhaganbhai
      Thakkar v. State of Gujarat, (1964) 7 SCR 361 :
            “(1) The prosecution must prove beyond 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
G           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
            Section 84 of the Indian Penal Code: the accused may rebut it by
            placing before the court all the relevant evidence oral, documentary
H
   DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA                                  775
                 [NAVIN SINHA, J.]

      or circumstantial, but the burden of proof upon him is no higher          A
      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         B
      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.”
       11. Section 84 of the IPC carves out an exception, that an act will      C
not be an offence, 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 defence on a           D
preponderance of probability, as observed in Surendra Mishra vs. State
of Jharkhand, (2011) 11 SCC 495, after which the onus shall shift on
the prosecution to establish the inapplicability 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       E
insanity, as observed in State of Rajasthan vs. Shera Ram, (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         F
      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.”
      12. The crucial point of time for considering the defence plea of
unsoundness of mind has to be with regard to the mental state of the            G
accused at the time the offence was committed collated from evidence
of conduct which preceded, attended and followed the crime as observed
in Ratan Lal vs. State of Madhya Pradesh, (1970) 3 SCC 533, as
follows:

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776            SUPREME COURT REPORTS                          [2018] 7 S.C.R.


A           “2. It is now well-settled that the crucial point of time at which
            unsoundness of mind should be established is the time when the
            crime is actually committed and the burden of proving this ties on
            the accused. In D.G. Thakker v. State of Gujarat it was laid
            down that “there is a rebuttable presumption that the accused
            was not insane, when he committed the crime, in the sense laid
B
            down by Section 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 which rests upon a party to civil
            proceedings”.
C            13. If from the materials placed on record, a reasonable doubt is
      created in the mind of the Court with regard to the mental condition of
      the accused at the time of occurrence, he shall be entitled to the benefit
      of the reasonable doubt and consequent acquittal, as observed in Vijayee
      Singh vs. State of U.P., (1990) 3 SCC 190.
D            14. We shall now consider the sufficiency of other medical and
      defence evidence to examine if a reasonable doubt is created with regard
      to the mental state of the appellant at the time of commission of the
      assault on a preponderance of probability, coupled with the complete
      lack of consideration of the evidence of P.W.14. Merely because an
E     injured witness, who may legitimately be classified as an interested
      witness for obvious reasons, may have stated that the appellant was not
      of unsound mind, cannot absolve the primary duty of the prosecution to
      establish its case beyond all reasonable doubt explaining why the plea
      for unsoundness of mind taken by the accused was untenable.

F            15. 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, even
      weekly, 12 in number, between the period from 09.01.2007 to 07.04.2007,
      administering of antipsychotic drugs such as tablet Haloperidol and tablet
      Olanzapine and tablet Diazepam to the appellant with the impression
G     recorded by the Doctor that the patient is psychotic and needs
      continuation of treatment. The significance of use of the words
      “continuation” cannot be lost sight of, and has obviously been used with
      regard to a pre-existing ailment and which includes the period prior to
      and from 26.09.2006 to 28.09.2006. On 03.05.2007, an application was
H     moved on behalf of the appellant under Chapter-XXV of the Code of
   DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA                                   777
                 [NAVIN SINHA, J.]

Criminal Procedure that he was not fit to face trial. A fresh medical            A
report was called for on 14.06.2007 which opined on 19.06.2007 that the
appellant was a chronic patient of psychotics who has been evaluated
time and again by the Mental Hospital, Nagpur, the present doctor at
Akola and also by the Psychiatrist. On 13.07.2007, the Trial Court
directed him to be sent to the Mental Hospital and called for a fresh
                                                                                 B
report. On 11.04.2008, fresh report was called for and the appellant
was prescribed Trinicalm Forte tablet/Trinicalm Plus tablet amongst other
medicines. The treating Doctor, Dr. Pramod Thakare, opined in writing
on 20.05.2009 as follows:
      “1) Above named prisoner is suffering from mental illness
      (psychosis) since unknown duration. He is being treated and                C
      examined by several psychiatrists attached to Govt. Medical
      College and Hospital, Akola since January 2008 during specialists
      visit to prison.
      2) This prisoner showed suicidal tendency, aggressive behavior,
      disturb sleep, poor communication and occasional erratic behavior.         D

      3) He was treated with a various antipsychotic drugs since January
      2008 till today.
      …..At present he is under control with antipsychotic drugs and is
      still maintained on drugs. He may be referred to Mental Hospital,          E
      Nagpur for further investigations and expert opinion, for further
      proceedings.”
      16. The nature of illness of the appellant, and its correlation to the
nature of treatment required may appropriately be set out as follows:
      • Haloperidol is used to treat certain mental/mood                         F
        disorders (e.g., schizophrenia, schizoaffective disorders). This
        medicine helps you to think more clearly, feel less nervous, and
        take part in everyday life. It can also help prevent suicide in people
        who are likely to harm themselves. It also reduces aggression and
        the desire to hurt others. It can decrease negative thoughts             G
        and hallucinations.
      • Olanzapine is an antipsychotic medication that affects chemicals
        in the brain. Olanzapine is used to treat the symptoms of
        psychotic conditions such as schizophrenia and bipolar
        disorder (manic depression)
                                                                                 H
778             SUPREME COURT REPORTS                             [2018] 7 S.C.R.


A            • Diazepam is used to treat anxiety, alcohol withdrawal,
               and seizures. It is also used to relieve muscle spasms and to
               provide sedation before medical procedures. This medication
               works by calming the brain and nerves. Diazepam belongs to a
               class 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 blocking
               the action of dopamine, a chemical messenger in the brain that
               affects thoughts and mood. Trihexyphenidyl is an ant cholinergic
C              which works on the nervous system and corrects some of the
               side effects occurring during antipsychotic treatment.
               Trifluoperazine is a typical antipsychotic. It works by blocking
               the action of dopamine, a chemical messenger in the brain that
               affects thoughts and mood.

D            • Trinicalm Plus 5 mg/2 mg Tablet is a combination of two
               medicines: Trifluoperazine and Trihexyphenidyl. Trifluoperazine
               is a typical antipsychotic. It works by blocking the action of a
               chemical messenger (dopamine) in the brain that affects thoughts
               and mood. However, it may cause side effects such as
               involuntary movements (shaking of hands, muscle spasms).
E              Trihexyphenidyl is added to treat and prevent these side effects.
             17. C.W.1 was also examined by the defence as D.W.3 and
      deposed that he had no materials with regard to the previous history of
      the appellant, that none of his relatives were present at the time of such
      examination, and he could not therefore say anything regarding any pre-
F     existing mental disorder of the appellant.
              18. D.W.1, the sister of the appellant, and his mother D.W.2, had
      stated that the appellant had to be tied up at times and was unable to
      take care of himself, including clothing on his person. The prosecution
      did not deny the fact of a treating Psychiatrist at Akola, by the name of
G     Dr. Kelkar, mentioned by the witness. The appellant and his family were
      poor people and could hardly be expected to meticulously preserve medical
      papers or lead expert evidence as observed in Ratan Lal (supra). Merely
      because five years later in the witness box the witness may have stated
      that there was no complaint from the police with regard to the conduct
      of the appellant in custody, the trial judge manifestly erred in his conclusion
H
   DEVIDAS LOKA RATHOD v. STATE OF MAHARASHTRA                                   779
                 [NAVIN SINHA, J.]

with regard to the mental state of the appellant at the time of occurrence       A
by testing it on the touchstone of the present demenaour in court and
present conduct of the appellant, without any reference to the medication
that was being provided to the appellant while in custody. Naturally, if
the appellant was being provided proper medical treatment during custody,
his condition would certainly improve over time.
                                                                                 B
       19. The trial judge erred in proper consideration and appreciation
of evidence, virtually abjuring all such evidence available raising doubts
about the mental status of the appellant at the time of commission of the
offence, so as to leave his conviction as a foregone conclusion. The trial
judge unfortunately did not consider it necessary to put further questions
to P.W.14 with regard to the hospitalisation of the appellant immediately        C
after the occurrence and why the prosecution had not placed the
necessary evidence in this regard before the court. The truth therefore
remained elusive, and justice thus became a casualty. The Trial Judge
therefore erred in his duty, as observed in State of Rajasthan vs. Ani
alias Hanif and others, (1997) 6 SCC 162 as follows:                             D
      “12. Reticence may be good in many circumstances, but a Judge
      remaining mute during trial is not an ideal situation. A taciturn
      Judge may be the model caricatured in public mind. But there is
      nothing wrong in his becoming active or dynamic during trial so
      that criminal justice being the end could be achieved. Criminal            E
      trial should not turn out to be a bout or combat between two rival
      sides with the Judge performing the role only of a spectator or
      even an umpire to pronounce finally who won the race. A Judge
      is expected to actively participate in the trial, elicit necessary
      materials from witnesses in the appropriate context which he feels
      necessary for reaching the correct conclusion. There is nothing            F
      which inhibits his power to put questions to the witnesses, either
      during chief examination or cross-examination or even during re-
      examination to elicit truth. The corollary of it is that if a Judge felt
      that a witness has committed an error or a slip it is the duty of the
      Judge to ascertain whether it was so, for, to err is human and the         G
      chances of erring may accelerate under stress of nervousness
      during cross-examination. Criminal justice is not to be founded
      on erroneous answers spelled out by witnesses during evidence-
      collecting process. It is a useful exercise for trial Judge to remain
      active and alert so that errors can be minimized.”
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780                SUPREME COURT REPORTS                       [2018] 7 S.C.R.


A            20. The Appellate Court also had a duty to consider the nature of
      the evidence led by P.W.14 and the other medical evidence available on
      record with regard to the appellant. Unfortunately, it appears that the
      Appellate Court also did not delve into the records in the manner required,
      as observed in Rama and others vs. State of Rajasthan, (2002) 4 SCC
      571
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              “(4) …… It is well settled that in a criminal appeal, a duty is
              enjoined upon the appellate court to reappraise the evidence itself
              and it cannot proceed to dispose of the appeal upon appraisal of
              evidence by the trial court alone especially when the appeal has
              been already admitted and placed for final hearing. Upholding
C             such a procedure would amount to negation of valuable right of
              appeal of an accused, which cannot be permitted under law.”
            21. We are therefore of the considered opinion, that the appellant
      has been able to create sufficient doubt in our mind that he is entitled to
      the benefit of the exception under section 84 I.P.C. because of the
D     preponderance of his medical condition at the time of occurrence, as
      revealed from the materials and evidence on record. The prosecution
      cannot be said to have established its case beyond all reasonable doubt.
      The appellant is therefore entitled to the benefit of doubt and consequent
      acquittal. The appeal is allowed. He is directed to be released from
E     custody unless wanted in any other case.
            22. In view of our conclusions and findings based on the medical
      evidence with regard to the appellant, it is considered necessary to give
      further directions under Section 335 or 339 of the Criminal Procedure
      Code, as the case may be, so that the appellant is not exposed to vagaries
F     and receives proper care and support befitting his right to life under
      Article 21 of the Constitution of India. A copy of this order be sent to
      the District Legal Services Authority, Akola for the needful.


      Nidhi Jain                                                    Appeal allowed.
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