1/23 (Cr. A. No. 2016 of 2019) 2025:CGHC:6743-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL NO. 2016 OF 2019 (Arising out of Judgment dated 19.12.2019 passed by Second Additional Sessions Judge, Bilaspur in Sessions Case No.35 of 2019)  Amitabh @ Aaryan Banjare, S/o Shri Kashiram Banjare, aged about 22 years, R/o Ward No.5, Shanti Nagar, Sakri, Police Station Sakri, District Bilaspur, Chhattisgarh. ... Appellant(s) Versus  State of Chhattisgarh, through: District Magistrate, Bilaspur, District Bilaspur, Chhattisgarh. ... Respondent(s) --------------------------------------------------------------------------------- For Appellant :- Mr. Rishi Rahul Soni, Advocate. For Respondent-State :- Mr. Vivek Mishra, Panel Lawyer. --------------------------------------------------------------------------------- (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board [06-02-2025] Sanjay K. Agrawal, J. 1. Assail in this Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC) is to the Judgment dated 19.12.2019 passed by 2/23 (Cr. A. No. 2016 of 2019) learned Second Additional Sessions Judge, Bilaspur, District Bilaspur (Trial Court) in Sessions Case No. 35/2019, by which the sole appellant herein has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced thereunder to suffer Life Imprisonment and to pay fine of Rs.500/- and in default of payment of fine amount, to suffer Rigorous Imprisonment for 06 months additionally. Prosecution case, in brief:- 2. On 27.10.2018, at about 2:45 p.m., the appellant confined Ayush Banjare (deceased), son of PW-3 Anil Banjare, in a room of the house of PW-3 Anil Banjare and assaulted him with bamboo-stick by which he suffered grievous injuries and died. Merg (Ex. P-9) was recorded. FIR (Ex. P-5) was registered by PW-3 Anil Banjare in the Police Station, Sakri at 5:35 p.m. on the same day. Crime Details Form (Ex. P-6) was prepared. Seizure of a bamboo-stick was made from the place of incident vide Ex. P-3 and seizure of bloodstained as well as control earth was made vide Ex. P-4. Inquest report (Ex. P-2) was prepared in presence of panch-witnesses, pursuant to which post- mortem examination of the deceased was conducted 3/23 (Cr. A. No. 2016 of 2019) by PW-8 Dr. Dharmendra Kumar who vide post- mortem report (Ex. P-12) opined the cause of his death to be cardio-respiratory failure due to shock as a result of injuries inflicted on his body. In FSL report (Ex. 27), blood was found on the bamboo-stick. 3. On the date of incident, at 7:35 p.m., the appellant was medically examined by PW-4 Dr. Ajambar Singh, Medical Officer (Emergency) vide Ex. P-7 in which though he found the appellant to be physically fit on the basis of general physical examination, but for the mental check-up of the appellant, he referred the appellant to a Psychiatry OPD. Accordingly, the appellant was referred to the State Mental Health Hospital, Sendri, Bilaspur where he remained under treatment from 27.10.2018 till 28.11.2018 and during that period he was treated by PW-10 Dr. Ashutosh Tiwari for ‘cannabis induced mania with psychotic symptom’ with olanzapine, lorazepam and other medicines, as per Ex. P-15. 4. After completion of the investigation, charge-sheet was filed against the appellant for offence under Section 302 of IPC before the Judicial Magistrate First Class, Bilha, District Bilaspur. 4/23 (Cr. A. No. 2016 of 2019) Proceeding before the Magistrate:- 5. In the committal proceeding, an application under Section 328 of CrPC was filed by the appellant before the Judicial Magistrate First Class, Bilha pursuant thereto, on 25.1.2019, Dr. Ashutosh Tiwari, Medical Officer, State Mental Hospital, Sendri, Bilaspur was examined before the learned Magistrate wherein he stated that on 27.10.2018 the appellant was admitted for his mental treatment in the State Mental Hospital, Sendri, Bilaspur and on 28.11.2018 he was discharged after his treatment. He further stated that the appellant was found to be suffering from ‘cannabis induced mania with psychotic symptom’ for which he was treated with certain medicines and his mental condition was improved partially and presently the mental status of the appellant is normal and he is competent to defend himself. Accordingly, the application under Section 328 of CrPC was rejected by the Magistrate and by committal order dated 25.1.2019, the matter was committed to the Sessions Court, Bilaspur. After committal, the Sessions Court, Bilaspur referred the matter to the Trial Court for trial and disposal of the matter in accordance with law. 5/23 (Cr. A. No. 2016 of 2019) Proceeding before the Trial Court:- 6. After committal, the proceeding continued before the Trial Court and on 28.8.2019 when the case was fixed for the statement of the appellant, the appellant could not spell out his name and his father’s name and also could not be able to give any reply/information asked by the Court and therefore the Trial Court directed to call for a report from Central Jail, Bilaspur in respect of the mental status, lifestyle, gesture, medicines prescribed for mental illness and the medicines, if any, prescribed for any other medical condition of the appellant, and fixed the matter for 31.8.2019 on which date the report was submitted stating that the mental condition of the appellant was not good and therefore the Jail Superintendent was directed for treatment of the appellant’s mental condition by a Psychiatrist and the report of the concerned Medical Officer be submitted before the next date of hearing. On 4.9.2019, the case was taken up on the representation submitted by the Medical Officer, Central Jail Hospital, Bilaspur wherein it was mentioned that on 3.9.2019 the appellant was sent for his treatment at State Mental Hospital, Sendri and 6/23 (Cr. A. No. 2016 of 2019) the Psychiatrist of the said Mental Hospital has examined the appellant and prescribed certain medicines and on examination the appellant has not been found competent to record his statement, thereby the Trial Court held that the appellant was not found to be competent to give his statement and fixed the matter on 16.9.2019. Thereafter, the matter was taken up on 16.9.2019 and 30.9.2019 awaiting the report of the Psychiatrist. On 2.10.2019, on the basis of the report of the Medical Officer, Central Jail Hospital, Bilaspur supported by the prescriptions of the Psychiatrist of the State Mental Hospital, Sendri, the appellant was held to be competent to record his statement. Thereafter, on 4.11.2019 also it was recorded that the appellant is competent to give his statement and the matter remained fixed for recording of his statement. Ultimately, the statement of the appellant was recorded on 20.11.2019. Defence plea:- 7. It is the case of the appellant that before the Trial Court based upon the statement of PW-3 Anil Banjare, PW-6 Santoshi Banjare, who are father and mother of the deceased, and PW-15 Jaiprakash, the 7/23 (Cr. A. No. 2016 of 2019) Investigating Officer, that since on the date of offence the mental status of the appellant was not good and therefore he was not able to understand the nature of his action due to unsoundness of mind properly and therefore his case would come under the provisions of Section 84 of CrPC which provides immunity from criminal prosecution to persons of unsound mind. Finding of the Trial Court:- 8. Learned Trial Court, vide impugned judgment dated 19.12.2019, after appreciating the oral and documentary evidence available on record, came to the conclusion that none of the prosecution witnesses has stated in his cross-examination about the appellant suffering from any mental illness and committed the said act due to unsoundness of mind, thereby rejected the plea of the defence disentitling the appellant to get the immunity provided under Section 84 of IPC for legal insanity and held that the appellant has in his full consciousness and in complete sense and mind/body committed the murder of deceased Ayush Banjare and accordingly convicted him for offence under Section 302 of IPC to undergo Life Imprisonment and to pay fine of 8/23 (Cr. A. No. 2016 of 2019) Rs.500/- with default sentence. It is this conviction and sentence of the appellant which has been assailed in the present appeal calling in question the legality, validity and correctness of the impugned judgment. Submission on behalf of the appellant:- 9. Mr. Rishi Rahul Soni, learned counsel appearing for the appellant, submits that on the date of offence i.e. on 27.10.2018 itself pursuant to the opinion of PW-4 Dr. Ajambar Singh vide Ex. P-7 to refer the appellant to a Psychiatrist for his mental check-up, he was admitted to the State Mental Hospital, Sendri where he remained under treatment from 27.10.2018 till 28.11.2018 and during that period he was treated by PW-10 Dr. Ashutosh Tiwari, Medical Officer for ‘cannabis induced mania with psychotic symptom’ as per Ex. P-15. He further submits that the application under Section 328 of CrPC preferred by the appellant was summarily rejected by the Magistrate Court and even during the course of trial the appellant was found to be suffering from mental disorder while recording his Section 313 CrPC statement and the mental illness ‘cannabis induced mania with psychotic symptom’ is a psychotic disorder akin to 9/23 (Cr. A. No. 2016 of 2019) schizophrenia. Therefore, the appellant’s case is covered by Section 84 of IPC and as such he deserves to be acquitted of the offence under Section 302 of IPC, relying upon the decision of the Supreme Court rendered in the matter of Prakash Nayi @ Sen v. State of Goa1 followed in the matter of Rupesh Manger (Thapa) v. State of Sikkim2. Submission on behalf of the State:- 10. Mr. Vivek Mishra, learned State Counsel, supports the impugned judgment and submits that the prosecution has been able to prove its case beyond reasonable doubt and therefore the impugned judgment deserves to be affirmed. However, he submits that the plea of schizophrenia has not been taken promptly before the Trial Court and as such it cannot be said that the appellant was suffering from legal insanity on the date of commission of the offence and the plea of legal insanity is liable to be rejected. Next, he submits that the prosecution has been able to establish beyond reasonable doubt that it was the appellant who had taken the deceased inside the room and confining him into the room, the appellant assaulted him with 1 2023 LiveLaw (SC) 71 2 Criminal Appeal Nos.2069-2070 of 2022, decided on 13.9.2023. 10/23 (Cr. A. No. 2016 of 2019) bamboo-stick on account of which he suffered grievous injuries on his head and died. Thus, the appeal deserves to be dismissed, affirming the impugned judgment of conviction and sentence. 11. We have heard learned counsel(s) for the parties, considered their rival submissions made herein-above and also perused the record of the case with utmost care and circumspection. Plea of insanity:- 12. Plea of insanity as provided under Section 84 of IPC has been taken by the appellant before the Trial Court, which is apparent from perusal of paragraphs 28 to 31 of the impugned judgment and it has been negated by the Trial Court and proceeded to convict the appellant for offence under Section 302 of IPC. 13. In order to consider the plea raised at the bar, it would be appropriate to notice Section 84 of IPC, which states as under:- “84. Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” 11/23 (Cr. A. No. 2016 of 2019) 14. The burden of proving an offence is always on the prosecution; it never shifts. Intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Section 84 of IPC can be invoked by the accused for nullifying the evidence produced by the prosecution. This he can do by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The prosecution need not establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. It if for this reason that Section 105 of the Indian Evidence Act, 1872 places upon the accused person the burden of proving the exception relied upon by him. (See: Bhikari v. The State of Uttar Pradesh3). 3 AIR 1996 SC 1 12/23 (Cr. A. No. 2016 of 2019) 15. The Supreme Court in the matter of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat4, has held that the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite, mens rea. It was further held that when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence 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 offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of IPC can only be established from the circumstances which preceded, attended and followed the crime. It was observed thus:- “5.....It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described 4 AIR 1964 SC 1563 13/23 (Cr. A. No. 2016 of 2019) in S. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S. 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under S. 105 of the Evidence Act, read with the definition of "shall presume" in S. 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or 14/23 (Cr. A. No. 2016 of 2019) other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity. * * * 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 reasonable doubt that the accused had committed the offence with the requisite, mensrea; 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 which 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 laced before the court by the accused or by the prosecution may raise a 15/23 (Cr. A. No. 2016 of 2019) 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.” 16. Likewise, the Supreme Court in the matter of Shrikant Anandrao Bhosale v. State of Maharashtra5 has held that in coming to the conclusion that a man was labouring under defect of reason as not to know the nature of the act he was doing relevant circumstances like the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence should be taken into consideration and the Court may rely not only on defence evidence but also on what is elicited from the prosecution witnesses as well as on circumstantial evidence consisting of the previous history of the accused and his subsequent conduct in the surrounding circumstances including absence of the motive. It was further held that the accused has only to satisfy the standard of a prudent man and he need not establish his plea beyond all reasonable doubt. It was also held that even if the accused was 5 2002 Cri LJ 4356 16/23 (Cr. A. No. 2016 of 2019) not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court 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 has been discharged. 17. Thereafter, the Supreme Court in the matter of Devidas Loka Rathod v. State of Maharashtra6 has, relying upon the decision of Ratan Lal v. State of Madhya Pradesh7, has held that “It is now 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 lies on the accused”. The principles of law laid down in Devidas Loka Rathod (supra) have been followed in Prakash Nayi (supra). 18. In the matter of Prakash Nayi (supra), the Supreme Court, while examining a well-laid procedure contemplated under Sections 328 to 339 of CrPC, has 6 (2018) 7 SCC 718 7 (1970) 3 SCC 533 17/23 (Cr. A. No. 2016 of 2019) held that the whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice. If a friendly approach is required to be followed during the trial, when adequate powers have been conferred upon the Court to even discharge an accused on the ground of an unsound mind, the same reasoning will have to be applied with much force when it comes to Section 84 of IPC. Cannabis Induced Mania with Psychotic Symptom :- 19. The active component of cannabis i.e. delta 9 THC is known to have sedative, hypnotic, anxiolytic and antidepressant effects. Psychotic symptoms and schizophrenic precipitation/exacerbation are well known and accepted after cannabis use. According to the report, the first hypothesis is that cannabis use causes psychotic symptoms in an otherwise healthy individual that would not have occurred with abstinence. 18/23 (Cr. A. No. 2016 of 2019) Discussion and Legal Analysis:- 20. The Trial Court has convicted the appellant on the basis of merit of the case, rejecting the plea of insanity raised on behalf of the appellant. The Trial Court did not find merit in the plea of insanity, holding that said plea is not based on evidence available on record. However, the facts speak otherwise. 21. The date of offence is 27.10.2018 and on the same day itself, at 7:35 p.m., the appellant was taken for his medical examination which was conducted by PW- 4 Dr. Ajambar Singh, Medical Officer (Emergency) vide Ex. P-7 in which though he found the appellant to be physically fit on the basis of his general physical examination, but for his mental status he was referred to review in a Psychiatry OPD. Accordingly, on the same day, the appellant was taken to the State Mental Health Hospital, Sendri, Bilaspur where he remained under treatment from 27.10.2018 till 28.11.2018 and as per the treating doctor i.e. PW-10 Dr. Ashutosh Tiwari, he was diagnosed with ‘cannabis induced mania with psychotic symptom’ and therefore he was treated with olanzapine, lorazepam and other medicines, as per report (Ex. P-15). Immediately after 19/23 (Cr. A. No. 2016 of 2019) the appellant was discharged from the said mental hospital on 28.11.2018, he was arrested vide Ex. P-25. During committal proceeding before the Magistrate’s Court also, the appellant had filed the application under Section 328 of CrPC on 2.1.2019, but it was eventually rejected by Magistrate on 25.1.2019 after examining Dr. Ashutosh Tiwari vide Ex. P-19 wherein he has stated that the appellant was found to be suffering from ‘cannabis induced mania with psychotic symptom’ and he was treated between 27.10.2018 to 28.11.2018 and during his treatment there was a partial improvement on his mental condition and now his mental status is normal and he is competent to defend himself. After committal, Dr. Ashutosh Tiwari was examined as PW-10 before the Trial Court where in paragraph-6 of his statement he has stated that after taking medicines, the mental condition of the appellant was normal and therefore he was competent to give his statement and was capable to stand in trial. However, in his cross- examination, in paragraph-10, Dr. Tiwari has admitted that as per paragraph-3 of Ex. P-19, the appellant was not competent to defend himself and 20/23 (Cr. A. No. 2016 of 2019) further admitted that the statement made in paragraph-4 of Ex. P-19 that the mental condition of the appellant was normal and he was competent to give his statement, was made without any basis. In this regard, the decision of the Supreme Court rendered in the matter of Prakash Nayi (supra) may be noticed wherein their Lordships of the Supreme Court have clearly held that the mere fact that the appellant subsequently became fit to face the trial is sufficient enough to render an order of acquittal as it is indicative of his prior insanity, and observed in paragraph-27 therein as under. “27. ...The mere fact that the appellant subsequently became fit to face the trial is sufficient enough to render an order of acquittal as it is indicative of his prior insanity. We do feel that both the Trial Court and the High Court were influenced by the nature of the act while ignoring the condition of the appellant and the fact that the burden on the accused is one of preponderance of probability. We have also been informed that the appellant has recovered fully and mixed well with the society.” 22. As such, the principles of law laid down in Prakash Nayi (supra) are clearly applicable to the facts of the present case, as in this case also PW-10 Dr. Ashutosh Tiwari has clearly stated that previously the appellant 21/23 (Cr. A. No. 2016 of 2019) was not able to defend himself, but on 25.1.2019 (Ex. P-19), as per the statement of Dr. Ashutosh Tiwari, the appellant became fit to stand in trial. However, in this regard, the statement of PW-3 Anil Banjare, father of the deceased, may be noticed where in paragraph-7 he has stated that while recording of his police statement (Ex. D-3) he had informed to the police that the appellant was behaving abnormally from last 3-4 days. Similarly, PW-6 Santoshi Banjare, mother of the deceased, in paragraph-6 of her statement, has stated that she had stated in her police statement that the appellant was behaving abnormally from last 4-5 days. Likewise, PW-15 Jaiprakash, the Investigating Officer, has also in his cross-examination stated that immediately after incident when the appellant was apprehended, his behaviour was found to be abnormal and therefore he was referred to the mental hospital and as per the report (Ex. P-15), the appellant was found to be suffering from some mental illness and the doctor had advised him not to arrest the appellant while he was being treated in the mental hospital. Not only this, the order-sheets of the Trial Court would show that on 22/23 (Cr. A. No. 2016 of 2019) 28.8.2019 the appellant was not found fit to make his statement, as he could not spell out his/his father’s name and also could not be able to give any reply/information asked by the Court and thereafter on 31.8.2019, 4.9.2019, 16.9.2019 and 30.9.2019 also he was not found competent to give his statement. Ultimately, on 2.10.2019 and 4.11.2019, he was found fit to give his statement and then the statement of the appellant under Section 313 of CrPC was recorded on 20.11.2019 and thereafter the impugned judgment of conviction and sentence was passed by the Trial Court. 23. Thus, from the aforesaid discussion and legal analysis, we find that on the date of offence the appellant was suffering from ‘cannabis induced mania with psychotic symptom’ and he was not able to make decisions. Consequently, we are unable to concur with finding of conviction recorded by the Trial Court, as certainly the appellant is entitled to the benefit conferred under Section 84 of IPC. 24. Accordingly, we allow this Criminal Appeal and set- aside the impugned Judgment of conviction and sentence. Appellant stands acquitted of the offence 23/23 (Cr. A. No. 2016 of 2019) under Section 302 of IPC. He is in jail since 28.11.2018. It is directed that he be released forthwith from jail, unless his detention is required in connection with any other case. 25. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also served with a copy of this judgment, for information and necessary action at the earliest. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge sharad SHARAD KUMAR YADAV Digitally signed by SHARAD KUMAR YADAV Date: 2025.02.18 14:33:51 +0530