Shivaji S/O. Rama Kamble vs The State Of Maharashtra - Criminal Appeal

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Shivaji S/O. Rama Kamble vs The State Of Maharashtra on 12 March, 2026

2026:BHC-AUG:12487

                                        (1)                    937criapl1244.19

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 1244 OF 2019
                                        WITH
                         CRIMINAL APPLICATION NO. 475 OF 2023

            Shivaji Rama Kamble,
            Age-30 years, Occu-Nil,
            R/o. Bramhanath Vasti, Ghodka,
            Rajuri, Tq. & Dist. Beed
            at Present Central Jail,
            at Aurangabad
            Convict No. C/8774                        ...APPELLANT

                  VERSUS

            The State of Maharashtra,
            through Police Inspector,
            Police Station Pimpalner,
            Tq. & Dist. Beed                          ...RESPONDENT

            Mr. C. V. Thombre, Advocate for the appellant
            Mrs. A. S. Deshmukh, APP for the respondents/State

                                 CORAM : RAJNISH R. VYAS, J.
                                   DATE : 12th MARCH, 2026

            JUDGMENT : 1.           Heard Mr Thombre, learned Advocate (appointed) for

            the appellant and the learned APP for the respondent/State.

1.       Challenge in this appeal to the judgment dated 03-01-
   
           2018 passed by the Additional Sessions Judge, Beed in Sessions Case
   
           No. 89/2016 by which the accused was convicted for the commission
   
                                                                          1 of 35
                           (2)                           937criapl1244.19
   

of offences punishable under Sections 304 Part-I of the [Indian Penal

Code](https://indiankanoon.org/doc/1569253/), 1860 [in short ' IPC '] and directed to suffer rigorous

imprisonment for 10 years and to pay a fine of Rs. 500/-. In default,

the accused was directed to suffer rigorous imprisonment for 15 days.

1. In short, it is the case of the prosecution that on 30-04-

2016, when the informant/PW-1, who was the father of the accused,

was sitting in front of his house, the accused questioned him as to

why he was chewing tobacco and assaulted him by stick on the leg.

At which time, mother-in-law of PW-1/grand mother of the accused

scolded the accused and then accused brought the axe from the

house and assaulted the grand-mother on the head due to which she

fell in pool of the blood.

1. This incident led to the initiation of criminal

proceedings, but not to the immediate registration of the First

Information Report. It was PW-8-Gajanan, API attached to the

Pimpalner Police Station, who was on patrolling duty that day. He

received a phone call from the Pimpalner Police Station that a

murder had taken place at Ghodka Rajuri. Therefore, he took the

station diary entry upon arriving at the police station and went to the

spot. At the scene, he found a crowd gathered in front of the house

and learned that it belonged to PW-1. He then informed his superior.

2 of 35
(3) 937criapl1244.19 5. PW-8 on the spot found the corpus of a female, and

thereafter he prepared an inquest panchanama, which was proved

below Exh. 21. The corpus was forwarded for postmortem to the Civil

Hospital, Beed and even a letter to that effect was issued, which was

below Exh. 20.

1. Finally, as per the case of the prosecution on 01-05-

2016, PW-1 came to the police station and lodged the first

information report. His complaint was below Exh. 63. The lodgment

of the complaint resulted in the arrest of the accused on 01-05-2016,

and the arrest panchanama was proved below Exh. 66 by PW-8.

1. The investigation was carried out, clothes were seized,

witness statements recorded, and the stained clothes and the axe

were forwarded for chemical examination. After completion of the

investigation, a charge sheet was filed, and, since the trial court

found a prima facie case, the charge was framed against the accused

below Exh. 12/C on 27-03-2017 for commission of offences

punishable under Sections 302 and 323 of the IPC.

1. The record of the case shows that on 31-01-2017 the

learned Sessions Judge, Beed, ordered the Civil Surgeon, Civil

Hospital, Beed to comply with the order dated 04-01-2017 which was

                                                            3 of 35
                        (4)                       937criapl1244.19

for referring the accused for medical examination. By order dated 31-

01-2017, it was further directed that the Superintendent of District

Prison, Beed,to produce the accused before the Civil Surgeon, Civil

Hospital, Beed, with prior appointment. On 10-03-2017, the

Additional Sessions Judge, Beed had observed that the accused No. 1

had complaints of unsoundness of mind since long. The Civil Surgeon

had filed a certificate dated 13-02-2017, which shows that the

accused was examined by the Psychiatrist at the Civil Hospital on 18-

01-2017. The said certificate also reveals that the accused was

treated for depressive disorder at the jail, and at the time of

examination, the patient was conscious and oriented. The defence

had also accepted the report of the Civil Surgeon, and, considering

the report filed on record, the Additional Sessions Judge, Beed,

observed on 10-03-2017 that the accused is not of unsound mind and

capable of making his defence. Then, it was noted that it did not

impede proceeding with the trial. Steps were required to be taken by

the trial court since it was stated by the accused that he had a mental

illness. The aforesaid defense also surfaces from the line of cross-

examination.

1. Be that as it may, since the accused did not admit guilt,

the prosecution in order to bring home the charge; in all, examined a

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                         (5)                       937criapl1244.19

total of 8 witnesses. Before coming to the discussion of the testimony,

it is relevant to point out that the counsel for the appellant

challenging the judgment of conviction has raised the following

points. (i) insanity of the accused (ii) Since the case was based on

circumstantial evidence, it was the duty of the prosecution to

establish every link of the chain (iii) the case was not proved by the

prosecution beyond a reasonable doubt.

1. Learned APP has not only rebutted the arguments

advanced by the learned advocate for the appellant, but has stated

that the circumstances were brought on record which were duly

proved by the prosecution points out one fact: the accused was the

author of the crime. She thus prayed for the appeal to be dismissed.

1. As already stated, the accused was charged for the

commission of an offence punishable under Section 302 and 323 of

the IPC. The conviction awarded to the accused is under Section 304,

Part I of the IPC. Section 304 of the IPC prescribed punishment for

culpable homicide not amounting to murder. It can be divided into

two parts. (i) when the act by which death is caused is done with the

intention of causing death, or of causing such bodily injury as is likely

to cause death (ii) if the act is done with the knowledge that it is

                                                              5 of 35
                          (6)                        937criapl1244.19

likely to cause death, but without any intention to cause death, or to

cause such bodily injury as is likely to cause death.

1. Thus, it is clear that the case of prosecution is that the

accused has committed an act by which death is caused with the

intention of causing death. It is in this background that the the

testimony of the witnesses is required to be seen.

1. Notably the notice dated 09-05-2017 was issued under Section 294 of the Cr. P. C. below Exh.15 and following documents

were admitted.

Sr. Particulars Date By whom prepared
No. 1. Letter issued to M. O. Civil 01-05-16 API, PS Pimpalner
Hospital, Beed

1. Inquest Panchanama 01-05-16 API, PS Pimpalner

2. Receipt of dead body 01-05-16 API, PS Pimpalner

3. Death Certificate 01-05-16 M. O. D. H. Beed

4. Spot Panchanama 01-05-16 G. B. Jadhav, API, PS
   Pimpalner

5. Seizure Panchanama of 01-05-16 G. B. Jadhav, API, PS
   Baburao Pimpalner

6. PM notes of Tanhabai 01-05-16 M. O. D. H. Beed

7. Letter issued to M. O. C. H. 01-05-16 API, PS Pimpalner
   Beed

8. Letter issued to Exe. 01-05-16 API, PS Pimpalner
   Magistrate, Beed for Spot
   Map

9. MLC No. 1736 of Shivaji 01-05-16 M. O. D. H. Beed

                                                               6 of 35
                       (7)                      937criapl1244.19
   

10. MLC No. 1760 of Shivaji 01-05-16 M. O. D. H. Beed

11. Spot Map 20-06-16 C. I. Div. Pali

12. Letter of Supdt., Dist. Prison 20-01-17 Supdt. Dist. Prison,
    Beed

13. Copy of letter of Civil 18-01-17 Civil Surgeon, D. H.
    Surgeon, Dist. Hospital, Beed
    Beed

14.     The testimony of PW-1 Rama Kamble/ father is required
    

to be seen. He stated that the accused is his son and he, along with

the accused and his wife, were residing jointly, whereas the other

son, by the name Ashok, is residing separately. The name of the

mother-in-law of PW-1 is Tahanabai, and he has two brothers-in-law,

namely Vishnu and Hanumant. As there was a fair in the village, the

mother-in-law of PW-1 had come to the house of PW-1, and the

incident which might have happened one year before the deposition

took place at about 08.00 pm, when he was in his field, which was at

a distance of half a kilometer from his house. He rushed to his house

and saw his mother-in-law dead. He stated that when he reached the

house, the accused ran away.

1. Since he denied the suggestion that on the day of

incident in the evening, he was preparing the tobacco for eating in

front of his house and that accused was with him and mother-in-law

slept in the cattle shed, it did not happen that accused asked PW-1 as

                                                            7 of 35
                        (8)                       937criapl1244.19

to why he is chewing tobacco and beaten him by stick on left leg, at

this stage, the prosecution sought permission to cross-examine this

witness.

1. The permission was granted by the trial court, and in the

cross-examination, PW-1, at the instance of the prosecution, he

admitted that at the time of the incident, his wife had gone outside

the house to answer nature's call, and since prior to four days of the

incident, his mother-in-law was residing with him. He then denied

the incident which had taken place, but had admitted that Ramnath

and Mohan were his neighbours, and after the incident, these two

persons came to the house of the PW-1, snatched the axe from the

hands of the accused, so also , the injuries sustained by the mother-

in-law of PW-1 were also noted.

1. He also admitted that his mother-in-law died on the spot

and Angad Patil is the Police Patil of the village of PW-1. PW-1, in

his cross-examination, has admitted that he visited the police station,

put his thumb impression, and stated that it was on a complaint, but

denied that he had given information regarding the commission of an

offence to the police. He further admitted that he had been to the

court at Beed, where his statement was recorded, but denied that it

was recorded as per his say. He admitted that his thumb impression

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                          (9)                    937criapl1244.19

was on the said statement below Exh. 40. He further admitted that

the police had arrested his son.

1. PW-1 was then cross-examined at the instance of the

defence, in which he admitted that his son/accused had been

behaving like an insane person for the last many years, and treatment

was given to the accused by the Psychiatrist. He volunteered that the

file about the treatment was burn by the accused, and the accused

was wandering due to mental retardness. He admitted that, on

suspicion, the accused was arrested, and that the police had taken

only a thumb impression. He admitted, during cross-examination by

the defence, that the statement given in court was, as per say of the

police authorities.

1. PW-2 was neighbour by name Mohan who has stated

that on 30-04-2016 at about 07.00 to 07.30 pm when he was at

home he heard noise from the house of the PW-1 and therefore,

immediately called his nephew Ramnath, then went to the house of

PW-1. When they reached, PW-1 and the accused were fighting, and

they were rescued by PW-2 & PW-3. Thereafter, they caught hold of

the accused and tied him to the tree. when they saw the accused and

PW-1, at that time, the accused was assaulting his father by means of

                                                            9 of 35
                         (10)                    937criapl1244.19

slaps, except that PW-2 deposed that he did not see anything.

Thereafter, they went home.

1. As this witness also retracted the earlier statement he

had given, the prosecution again sought permission to cross-examine

PW-2, which was allowed by the court. During cross-examination,

various suggestions given to this witness were also denied. In the

cross-examination at the instance of prosecution, PW-2 had admitted

that on 02-05-2016, the police had enquired with him about the

incident, and portions mark-A and B of the statement were not

correctly recorded by the police. He could not give any reason for the

same. He deposed that he had given the statement on 07-05-2016 in

the Beed Court and that he had put his signature below the

statement; however, when the statement was read over to him, he

stated that he did not know its contents, whether or not it was his

say.

1. PW-2 was cross-examined briefly by the accused, in

which he admitted that the accused is mentally ill and therefore, on

the day of the incident, he was tied to the tree, and further, the

accused used to quarrel with the villagers, used to shout and wander.

He stated that his statement before the court under Section 164 of

the Cr. P. C. was given as per the police's say.

10 of 35
(11) 937criapl1244.19 22. PW-3 is Ramnath, reference to whom is made in the

testimony of PW-2. This witness has stated that he was a neighbour

of PW-1 and that on the day of the incident, at about 08.00 to 08.30

pm, he heard noise from PW-1's house and went there along with

PW-2, his uncle. The accused was holding an axe in his hand, and

PW-1 had caught hold of it. PW-3 then snatched the axe from the

accused and tied him to the tree. PW-2 and PW-3 were at the spot

where they saw the mother-in-law of Rama Kamble was dead, and

she had sustained two blows to the head with an axe. PW-3 then

returned to his house. His statement was recorded under Section 164 of the Cr. P. C. in the Beed Court. He admitted that its contents are

true and thus it is exhibited below Exh. 47. He stated that he cannot

identify the axe if shown to him.

1. Cross-examination of the PW-3 by the defense shows

that he was present at the spot of occurrence for half and hour and

accused at that time ran away at the distance of 100 to 200 fts and he

did not chase him. He stated that the reason for tying the accused to

the tree was that the accused may assault anyone, as the accused

suffers from mental fits. In between, he denied other suggestions.

1. PW-6-Vishnu is the son of the deceased who was

examined by the prosecution. He deposed that his mother had been

                                                           11 of 35
                        (12)                     937criapl1244.19

to the house of her daughter at Village Ghodka Rajuri, and on 30-04-

2016, when he was at home, his nephew Ashok had informed him

telephonically that a quarrel had taken place between the mother of

the PW-6 and the accused. Therefore, they were required to go to the

village, and accordingly, they went there. When PW-6 reached his

sister's place, he found his mother was lying dead and had sustained

grievous injury so also blood was oozing from the injuries.

1. He then enquired from PW-1, who told him that as PW-1

was chewing the tobacco, it was objected to by the accused, and then

the accused assaulted PW-1 on his leg. When the mother of PW-6

questioned the accused, the accused assaulted her by means of axe.

He further stated that the accused had killed his mother since she had

questioned the accused as to why he had assaulted his father. He

stated that the police recorded his statement.

1. He was subjected to cross-examination, in which he

admitted that when he reached the house, he found the accused tied

to the tamarind tree, behaving like a man of unsound mind. He

admitted that before one year from the date of incident, he was

taking treatment from Psychiatrist, but the treatment was stopped. Dr

Baglane was the psychiatrist from whom the treatment was taken,

and the accused had stopped taking the treatment as he had

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                           (13)                   937criapl1244.19

recovered from the illness. He further deposed that the accused, on

his own, stopped taking the medicine and thereafter was not willing

to take the medicine. Though the PW-6 tried to give medicine to the

accused, the accused refused to accompany PW-6. He admitted that

till 02-05-2016 the incident was not narrated to the police and the

reasons for the same was mentally illness of the accused. He admitted

that the police had not enquired about the mental condition of the

accused. So also, had not requested the police authorities to take the

accused to the Psychiatric.

1. The testimony of the aforesaid witnesses was challenged

by the defence on various grounds. Assailing the testimony of PW-1,

it is contended that he has turned hostile, so also PW-2, and

therefore, they are not reliable witness. The testimony of PW-3 was

assailed on the ground that this witness had also not seen the

incident. So far as the testimony of PW-6 is concerned, it was argued

by the defence that though the accused was suffering from a mental

illness, no steps were taken by the prosecution to take recourse to the

provision of law, more particularly, Section 84 of the IPC. The

learned APP has contended that if the testimony of PW-1, PW-2, PW-

3 and PW-6 is considered, it would reveal that the story of illness was

advanced for the first time and same is false/.

13 of 35
(14) 937criapl1244.19 28. Before discussing the further case, it is crucial to deal

with the issue of insanity.

Legal Insanity is a term used to describe a mental state that is
severe enough to prevent a person from having legal capacity
and excuses them from criminal responsibility. M'Naghten's
case (1843) 10 Cl & Fin 200, 1843 RR 59, (1843-60) All ER
Rep 229 (HL) The case provides that a defendant wishing to
rely on the defense of insanity must show that: They laboured
under a defect of reason Caused by a disease of the mind; so
that either He did not know the nature and quality of his acts,
or that he did not know what he was doing was wrong. Prakash Nayi Alias Sen Vs State of Goa [2023 (5) SCC 673]
The cases referred in the judgment are as follows:

A. Hari Singh Gond v. State of Madhya Pradesh, ( 2008) 16
SCC 109
"10.7.
Section 84 lays down the legal test of responsibility in cases of
alleged unsoundness of mind. There, is no definition of
"unsoundness of mind" in the IPC. The courts have, however,
mainly treated this expression as equivalent to insanity. But the
term 'insanity' itself has no precise definition. It is a term used
to describe varying degrees of mental disorder. So, every
person, who is mentally diseased, is not ipso facto exempted
from criminal responsibility. A distinction is to be made
between legal insanity and medical insanity. A court is
concerned with legal insanity, and not with medical insanity..." B. Dahyabhai Chhaganbhai Thakkar v. State Of Gujarat [1964
SCR 7 361]
"9. When a plea of legal insanity is set up, the court has to
consider whether at the time of commission of the offense 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 offense was committed. Whether the accused was in such a
state of mind as to be entitled to the benefit of Section 84 of
the Indian Penal Code can only be established from the

                                                             14 of 35
                  (15)                      937criapl1244.19

circumstances which preceded, attended and followed the
crime."

In the case of Devidas Loka Rathod v. State Of Maharashtra (2018) 7 SCC 718 the Hon'ble Apex Court has held that:

"11. Section 84 IPC carves out an exception, that an act will
not be an offense, 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 defense on a
preponderance of probability, as observed in Surendra Mishra
v. State of Jharkhand, (2011) 11 SCC 495, after which the
onus shall shift on the prosecution to establish the in
applicability 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 insanity, as observed in State Of Rajasthan v.
Shera Ram Alias Vishnu Dutta.(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
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."
Surendra Mishra v. State Of Jharkhand 2011 (11) SCC 495

1.       In our opinion, an accused who seeks exoneration
   

   from liability of an act under Section 84 of the Penal Code is to
   prove legal insanity and not medical insanity. Expression
   "unsoundness of mind" has not been defined in the Penal Code
   and it has mainly been treated as equivalent to insanity. But
   the term "insanity" carries different meaning in different
   contexts and describes varying degrees of mental disorder.
   Every person who is suffering from mental disease is not ipso
   facto exempted from criminal liability. The mere fact that the

                                                     15 of 35
                          (16)                       937criapl1244.19
   
   accused is conceited, odd, irascible and his brain is not quite all
   right, or that the physical and mental ailments from which he
   suffered had rendered his intellect weak and affected his
   emotions or indulges in certain unusual acts, or had fits of
   insanity at short intervals or that he was subject to epileptic fits
   and there was abnormal behavior or the behavior is queer, are
   not sufficient to attract the application of [Section 84](https://indiankanoon.org/doc/386905/) of the
   Penal Code."
   

28-A. A reference can also be made to the judgment of [Sheralli

Wali Mohammed vs State of Maharashtra](https://indiankanoon.org/doc/1283052/) 1973(4) SCC 79. The gist

of which is that nevertheless, the accused has to produce relevant

evidence to claim the benefit of doubt. Mere absence of motive or the

fact that the accused did not attempt to run away after committing a

crime does not indicate his unsoundness of mind. In , the court

observed that the mere absence of proved motive for committing a

crime would not prove that the accused was insane.

1. It bears mentioning that, before the commencement of

the trial, the accused was referred for examination to the Psychiatrist.

Thereafter, the trial court issued a detailed order, relying on the

certificate that the accused was not of unsound mind and capable of

making a defence. The said order dated 10-03-2017, passed by the

trial court, was not taken exception to by the accused. This fact

shows that the accused had not disputed that the accused was not of

unsound mind. Further law in this regard is also clear that, though

the plea of insanity is not taken by the defence, if it surfaces on the

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                        (17)                     937criapl1244.19

record from the material, an appropriate decision can be taken. It can

be seen that neither at the time of lodging of the First Information

Report or during the course of the investigation the relatives of the

accused made any attempt to take a stand that accused was suffering

from the mental illness that too at the time of commission of offence.

1. PW-1 is the father of the accused, who has stated that

the file of treatment was burned by the accused. Though PW-2 has

stated that the accused was suffering from mental illness and mental

fits, no specific instances were brought to the record. Further PW-3

has specifically stated that his statement was recorded under [Section

164](https://indiankanoon.org/doc/228024/) of the Cr. P. C. which was below Exh.47. In the statement under Section 164 of the Cr. P. C. also PW-3 has not stated about the

accused suffering from the mental fits.

1. At this juncture, the learned APP has rightly relied upon

the judgment in the case of [Dahyabhai Chhaganbhai Thakker Vs

State of Gujarat](https://indiankanoon.org/doc/1589322/) reported in AIR (1964) SCR 361 , more particularly

on para 6 and 7, which are reproduced as under:

" 6. The textbooks placed before us and the
decisions cited at the Bar lead to the same conclusion. In
Halsbury's Laws of England, 3rd edn., Vol. 10, at p. 288,
it is stated thus:

17 of 35
(18) 937criapl1244.19

"The onus of establishing insanity is on the accused. The
burden of proof upon him is no higher than that which
rests upon a party to civil proceedings."
Glanville Williams in his book 'Criminal Law', The
General Part, 2nd Edn., places the relevant aspect in the
correct perspective, thus, at p. 516:

"As stated before, to find that the accused did not know
the nature and quality of his act is, in part, only another
way of finding that he was ignorant as to some fact
constituting an ingredient of the crime; and if the crime
is one requiring intention or recklessness he must, on the
view advanced in this book, be innocent of mens rea.
Since the persuasive burden of proof of mens rea is on
the prosecution, the question of defence, or of disease of
the mind, arises, except in so far as the prisoner is called
upon for his own safety to neutralise the evidence of the
prosecution. No persuasive burden of proof rests on him.
If the jury are uncertain whether the allegation of mens
rea is made out ............ the benefit of the doubt must be
given to the prisoner, for, in the words of Lord Reading
in another context, "the Crown would then have failed to
discharge the burden imposed on it by our law of
satisfying the jury beyond reasonable doubt of the guilt
of the prisoner."
This Court in K. M. Nanavati v. State of Maharashtra (1)
had to consider the question of burden of proof in the
context of a defence based on the exception embodied in s. 80 of the Indian Penal Code. In that context, the law is
summarised thus:

"The alleged conflict between the general burden which
lies on the prosecution and the special burden imposed
on the accused under s. Section 105 of the Evidence Act
is more imaginary than real. Indeed, there is no conflict
at all. There may arise three different situations: (1) A
statute may throw the burden of proof of all or some of
the ingredients of an offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act). (2) The
special burden may not touch the ingredients of the
offence, but only the protection given on the assumption

18 of 35
(19) 937criapl1244.19

of the proof of the said ingredients: (see ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to
an exception, some of the many circumstances required
to attract the exception, if proved, affecting the proof of
all or some of the ingredients of the offence : ( see s. 80 of the Indian Penal Code)........................
In the third case, though the burden lies on the accused
to bring his case within the exception, the facts proved
may not discharge the said burden, but may affect the
proof of the ingredients of the offence."

After giving an illustration, this Court proceeded to state:

"That evidence may not be sufficient to prove all the
ingredients of Section 80 of the Indian Penal Code, but
may prove that the shooting was by accident or
inadvertence, i.e., it was done without any intention or
requisite state of mind, which is the essence of the
offence, within the meaning of s. 300, Indian Penal
Code, or at any rate may throw a reasonable doubt on
the essential ingredients of the offence of
murder.................. In this view, it might be said that the
general burden to prove the ingredients of the offence,
unless there is a specific statute to the contrary, is always
on the prosecution, but the burden to prove the
circumstances coming under the exceptions lies upon the
accused."
What is said of s. 80 of the Indian Penal Code will
equally apply to s. 84 thereof. A Division Bench of the
Patna High Court in Kamla Singh v. The State invoked
the same principle when the plea of insanity was raised. A Division Bench of the Nagpur High Court in Ramhitram v. State has struck a different note since it
held that the benefit of doubt which the law gives on the
presumption of innocence is available only where the
prosecution had not been able to connect the accused
with the occurrence, and that it had nothing to do with
the mental state of the accused. With great respect, we
cannot agree with this view. If this view were correct, the
court would be helpless and would be legally bound to
convict an accused even though there was a genuine and

                                                    19 of 35
            (20)                     937criapl1244.19

reasonable doubt in its mind that the accused did not
have the requisite intention when he did the act for
which he was charged. This view is also inconsistent with
that expressed in Nanavati 's case. A Scottish case, H.M.
Advocate v. Fraser, noticed in Glanville Williams'
"Criminal Law", The General Part, 2nd Edn., at p. 517,
pinpoints the distinction between these two categories of
burden of proof. There, a man killed his baby while he
was asleep; he was dreaming that he was struggling with
a wild beast. The learned author elaborates the problem
thus:

"When the Crown proved that the accused had killed his
baby, what may be called an evidential presumption or
presumption of fact arose that the killing was murder.
Had no evidence been adduced for the defence, the jury
could have convicted of murder, and their verdict would
have been upheld on appeal. The burden of adducing
evidence of the delusion, therefore, lay on the accused.
Suppose that, when all the evidence was in, the jury did
not know what to make of the matter. They might
suspect the accused of inventing a tale to cover his guilt,
yet remain reasonably uncertain about it. In that event
the accused would be entitled to an acquittal. The
prosecution must prove beyond a reasonable doubt not
only the actus reus but the mens rea. "
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 a 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 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
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

                                               20 of 35
                        (21)                     937criapl1244.19

        evidence placed before the court by the accused or by the
        prosecution 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 was not discharged."

1. The Hon'ble Apex Court has thus, clearly stated that even

if the accused were not able to establish the conclusive that he was

unsound mind at the time of committing the offence, evidence placed

before the court by the accused, or by the prosecution may raise

reasonable doubt in the mind of the court as regards one or more

important ingredients of the offence, including mens rea in that case,

the court would be entitled to acquit the accused on the ground that

general burden of proof prosecution was not discharge.

1. In this case, as already stated, there is absolutely no

material on record to come to the conclusion, even based on

preponderance of probability, that at the time of committing the

offence, by reason of unsoundness of mind the accused was incapable

of knowing the nature of the act or that he was doing what was

either wrong or contrary to the law. Further, the accused's

questioning of the father regarding the chewing of tobacco shows

that he could understand the effect of eating the tobacco, running

away from this spot, shows that accused was not suffering from legal

                                                           21 of 35
                            (22)                 937criapl1244.19

insanity. Perusal of statement recorded under Section 313 of Cr. P. C.

also shows that except denial and his false implication no defense is

taken by accused.

1. Thus, the defence taken by the accused thus seems to be

not based on preponderance of probability and I thus come to the

conclusion that recourse to section 84 of the IPC cannot be taken as

nothing has been brought on record, based on the preponderance of

probability that the accused was suffering from insanity. Medical

insanity and legal insanity are indeed two different aspects, but to

conclude that the accused was suffering from legal insanity,

something should have been brought on record. Further, the medical

report showing that the accused was not suffering from an unsound

mind, which was also admitted by the defence, supports the stand

taken by the prosecution.

1. It is important to see the question as to whether

circumstances are proved to award the conviction to the accused.

Law in this regard is crystal clear and authoritative pronouncement of

the the Hon'ble Apex Court in the case of [Sharad Birdhichand Sarda

Vs State of Maharashtra](https://indiankanoon.org/doc/13149785/) reported in (1984) 4 SCC 116, is a great help

and relevant para of it is :

22 of 35
(23) 937criapl1244.19

1. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) The circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be
or should be proved' as was held by this Court in Shivaji
Sahabrao Bobade & Anr. v. State of Maharashtra (')
where the following observations were made:

"Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can
convict, and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure
conclusions."
(2) The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say. they should not be explainable on any other
hypothesis except that the accused is guilty,

        (3) The circumstances should be of a conclusive nature
        and tendency.

(4) they should exclude every possible hypothesis except
the one to be proved, and

        (5) There must be a chain of evidence so complete as
        not to leave any reasonable ground for the conclusion
        consistent with the innocence of the accused , and must
        show that, in all human probability, the act must have
        been done by the accused.

1. Thus, in the aforesaid light, it will have to be seen

whether facts established are consistent only with the hypothesis of

                                                            23 of 35
                           (24)                   937criapl1244.19

the guilt of the accused and are not explainable on any hypothesis

except that of the accused.

1. It is a further well-settled principle of law that a witness

may lie, but circumstances will never.

1. Thus the question would also be whether the

prosecution has proved the case beyond a reasonable doubt. It is

settle principle of law that the initial burden to prove the case always

lies on the prosecution. The foundational facts must also be proved.

The prosecution must prove positive facts, but the rule cannot always

apply to negative facts. It is required to mention here that the

conduct of the accused cannot be the sole basis for conviction, since it

was the case of the prosecution that the accused tried to run away

from the spot.

1. As regards meaning of reasonable doubt is concerned,

the Hon'ble Apex Court in the case of Zainul VS State of Bihar, with

connected appeal reported in 2025 SCC Online SC 2152, has dealt

with the aforesaid aspect. Relevant para would be para 81, which

reads as follows:

"81. In Ramakant Rai v. Madan Rai, reported in (2003)
12 SCC 395, this Court explained the meaning of
"reasonable doubt". It means doubts that are free from

24 of 35
(25) 937criapl1244.19

abstract speculation, not the result of an emotional
response, and actual and substantial doubts about the
accused person's guilt, not vague apprehensions. It
cannot be an imaginary, trivial or a possible doubt, but a
doubt based upon reason and common sense. The
relevant observations have been reproduced below:-

"23. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond a reasonable doubt.
Though this standard is higher, there is no absolute
standard. What degree of probability amounts to "proof"
is an exercise particular to each case. Referring to (sic)
of probability amounts to "proof" is an exercise, the
interdependence of evidence and the confirmation of
one piece of evidence by another, as learned author
says : [see The Mathematics of Proof II: Glanville
Williams, Criminal Law Review, 1979, by Sweet and
Maxwell, p. 340 (342)] "The simple multiplication rule
does not apply if the separate pieces of evidence are
dependent. Two events are dependent when they tend to
occur together, and the evidence of such events may also
be said to be dependent. In a criminal case, different
pieces of evidence directed to establishing that the
defendant did the prohibited act with the specified state
of mind are generally dependent. A juror may feel doubt
whether to credit an alleged confession, and doubt
whether to infer guilt from the fact that the defendant
fled from justice. But since it is generally guilty rather
than innocent people who make confessions, and guilty
rather than innocent people who run away, the two
doubts are not to be multiplied together. The one piece
of evidence may confirm the other."

1. Doubts would be called reasonable if they are free
   from a zest for abstract speculation. Law cannot afford
   any favourite other than the truth. To constitute
   reasonable doubt, it must be free from an overemotional
   response. Doubts must be actual and substantial doubts
   as to the guilt of the accused persons arising from the
   evidence, or from the lack of it, as opposed to mere
   vague apprehensions. A reasonable doubt is not an
   imaginary, trivial or merely possible doubt, but a fair

                                              25 of 35
                       (26)                     937criapl1244.19
   
       doubt based upon reason and common sense. It must
       grow out of the evidence in the case.
   

2. The concepts of probability and the degrees of it
   cannot obviously be expressed in terms of units to be
   mathematically enumerated as to how many of such
   units constitute proof beyond a reasonable doubt.

       There is an unmistakable subjective element in the
       evaluation of the degrees of probability and the quantum
       of proof. Forensic probability must, in the last analysis,
       rest on a robust common sense and, ultimately, on the
       trained intuitions of the judge. While the protection
       afforded by the criminal process to accused persons is
       not to be eroded, the uninformed legitimisation of
       trivialities would make a mockery of the administration
       of criminal justice. This position was illuminatingly
       stated by Venkatachaliah, J. (as His Lordship then was)
       in [State of U.P. v. Krishna Gopal](https://indiankanoon.org/doc/10271/) [(1988) 4 SCC 302:
   

1988 SCC (Cri) 928: AIR 1988 SC 2154] ."

1. The doubt would be called reasonable if it is free from

the zest for obstructing speculation. It means doubts that are free

from abstract speculation, not the result of an emotional response,

and actual and substantial doubts about the accused person's guilt,

not vague apprehensions. It cannot be an imaginary, trivial or a

possible doubt, but a doubt based upon reason and common sense.

1. The question is whether the accused was present at the

scene of the incident. The testimony of PW-1 further shows that the

accused was present on the spot. Though the defence has contended

that his testimony should be ignored because he is hostile, the law in

this regard is very clear that it is not the mandate that the entire
26 of 35
(27) 937criapl1244.19

testimony of the hostile witness is required to be ignored. Still, due

care and caution being expected to be taken. While appreciating the

testimony, the court will have to see whether there is corroboration

of the said testimony. PW-1 stated that the accused was present on

the spot, which is corroborated by the testimony of PW-2 and PW-3,

who had categorically stated that they had tied the accused to the

tree.

1. The question is also whether the accused was having

weapon in his hand, at the time of incident. PW-1, father of the

accused, though has turned hostile, in the cross-examination at the

instance of the prosecution, has stated " it is true to suggest that his

neighbour had come to the house and they had snatched the axe

from the hands of the accused and seen injuries sustained by PW-1's

mother-in-law".

1. PW-2 and PW-3, who are independent witnesses, have

also supported the prosecution's case so far as this aspect is

concerned. Though PW-2 has turned hostile as already discussed, a

care will have to be taken before relying on his testimony. PW-2,

who has stated that when PW-2 and PW-3 reached at the spot, PW-1

and the accused were scuffling, and they rescued them, caught hold

of the accused and tied with tree. In cross-examination, he denied

                                                            27 of 35
                        (28)                      937criapl1244.19

that the accused was holding an axe. He admitted that on 02-05-

2016, the police enquired of him and stated that the portion marked

A and B in the statement recorded was not correct.

1. PW-3 has categorically stated, in his examination-in-

chief, that when they reached, i.e., PW-2 and PW-3, the accused was

holding an axe in his hand, and PW-1 caught hold of the axe. He then

snatched the axe from the accused and tied him to the tree. This act

clearly shows that the accused was carrying axe in his hand.

1. Next circumstance, is whether the said testimony of the

witnesses , inspires confidence to award conviction to the accused. In

this regard, it is crucial to highlight here that PW-1 has stated that

the accused had assaulted him on the leg with a stick. When PW-1

was referred to PW-5/ Dr. Vinod,who after examination, stated that

he found blunt trauma over the left knee joint. The age of injury was

less than one hour. Injuries sustained by the PW-1 were simple in

nature, and the certificate was proved by PW-5 below Exh. 54. the

defence did not cross-examine this witness. Thus, the version of PW-1

that he was assaulted by the accused on the leg is corroborated by

the testimony of PW-5.

28 of 35
(29) 937criapl1244.19 46. Further circumstances are whether the injuries sustained

by the deceased were due to the weapon used in the crime, which

was the axe. In this regard, it is worth noting that the first persons to

reach the incident site were PW-2 and PW-3.

1. PW-3, in his examination-in-chief, has categorically

stated that he snatched the axe from the accused and tied him to the

tree, and at the spot where PW-2 and PW-3 saw the mother-in-law of

PW-1 dead. PW-3 noticed that she sustained two injuries of blows of

the axe on her head. PW-1 has stated that PW-2 and PW-3 are the

neighbours and they had reached the house and snatched the axe

from the hands of the accused and injuries were sustained to his

mother-in-law and his mother-in-law had died on the spot.

1. The fact that the accused was carrying the axe, PW-2 and

PW-3 snatched it, and the mother-in-law sustained injuries which

were grievous, is supported by the testimony of PW-1.

1. An additional factor, i.e. testimony of PW-7 Medical

Officer/ Dr Sachin, who on 01-05-2016, after receipt of the letter

below Exh. 20 and inquest panchanama below Exh. 21, conducted

the postmortem on the dead body of mother-in-law of PW-1 and after

examination he found following four injuries (I) CLW over temporal

                                                             29 of 35
                        (30)                      937criapl1244.19

to ear 7x3x bone deep (ii) CLW over the cheek 3x2x bone deep, (iii)

fracture of the mandible, (IV) fracture of the temporal. He stated that

injuries were antemortem and were sufficient to cause death. This

witness was shown the muddemal property axe and stated that the

injuries were possible with the said weapon. He proved the

postmortem report, Exh. 26. This witness was not subjected to cross-

examination. The aforesaid fact also clearly shows that the injury was

caused due to blow of axe and victim had died as a result of it.

1. There is one more fact which is required to take a note of

it. The accused's clothes were seized and proved through the

testimony of PW-4, who stated that on 01-05-2016, he, along with

Ravindra, was called to the police station, and in their presence, the

accused's clothes were seized under the panchanama. The clothes

were a full shirt with blue and white lining and blood stains on both

sleeves, and black pants. He stated that the clothes were sealed in

two packets, and he, along with the other panch, put his signature.

The contents of which were admitted to be true by PW-4. The

panchanama was below Exh. 50. The clothes were shown to him,

which he identified as the same.

1. Even the saree and blouse of the deceased were seized in

their presence. A seizure panchanama of the same was prepared

                                                               30 of 35
                        (31)                     937criapl1244.19

(Exh. 25), which PW-4 signed, and the contents were found to be

true. Those clothes were sealed separately, and signatures were also

found on them. In the cross-examination, this witness has admitted

that he had acted as a panch in other cases registered at the same

police station. So, the police informed him to whom the clothes

belonged, and thereafter he signed. It was also admitted that the

accused was not present in their presence on that day. He denied

other suggestions.

1. PW-8 is the Investigating Officer who has deposed in his

testimony that he received the information regarding the murder and

thereafter took entry in the station diary, reached to the spot, and

found dead body of the victim in the pool of blood and therefore,

prepared inqeust panchanama by summoning two persons. He stated

that the statement of PW-1, who narrated the incident, was recorded

on 01-05-2026, as shown in Exh. 63 below. He prepared the spot

panchanama. The house consists of four rooms. Two rooms facing

West and two rooms facing North. In front of these rooms, there is a

platform (Oata). At the door of the West side room, an axe and a

stick were lying, and they were seized in the presence of the panchas.

He also seized the blood-mixed soil, simple soil from the spot. The

hair found with the axe was also seized. The spot and seizure

                                                           31 of 35
                         (32)                    937criapl1244.19

panchanama was shown to him below Exh. 24, the contents of which

were correct, and he put his signature. He sent the seized Muddemal

property for chemical analysis through the carrier Chavan by giving

the letter below Exh. 31.

1. In cross-examination, the challenge to the seizure of the

clothes and their forwarding to the laboratory was not even raised. In

this background, if Exh. 35/ CA report dated 31-03-2017 is seen, in

which the description of Articles is given. The axe was found with the

blood stains, and the full pant of the deceased had two blood stains,

each about 1 cm in diameter, on the lower portion of the left leg.

Saree had a considerable number of blood stains, ranging from about

0.5 cm in diameter to large, mostly at one end. The blouse had a

moderate number of blood stains, ranging from about 0.5 cm in

diameter to large, spread at various places. The blood was not

detected on the wooden stick, the earth wrapped, the hair wrapped,

or the accused's full-open shirt. Blood detected on axe, earth

wrapped, full pant, saree and blouse which was of "A" blood group.

The origin of the hair in Exh. 5 could not be determined, as the

results are inconclusive.

32 of 35
(33) 937criapl1244.19 54. Exh. 36 report of the laboratory dated 31-03-2017 shows

that the blood group of the deceased was 'A'. Exh. 37 shows that the

accused's blood group was also 'A'.

1. Hence, it is crystal clear that on the axe, full pant, Saree

and blouse, blood group 'A' was found. Since the blood group of both

the victim and the accused is of the same group, whether the

prosecution can rely upon the same, needs no further elaboration,

since nothing has been brought on record to show that the accused

had sustained any injuries on his person due to which his clothes

were stained with the blood. Thus, even the CA report supports the

prosecution's case.

1. The question whether it was the accused who was the

author of the crime or not thus stands answered in the light of the

parameters laid down by the Hon'ble Apex Court in the Case of

Sharad Badrichand Sarda discussed (supra) and in the case of Zainul

(supra). One of the factors is that the circumstances should be of

conclusive nature, and the chain of evidence should be so complete

as not to lead to any reasonable ground for a conclusion inconsistent

with the innocence of the accused, and must show that, in all human

probability, the act was committed by the accused.

33 of 35
(34) 937criapl1244.19 57. In this background, again, if the testimony of witnesses is

taken into consideration, it would reveal that the presence of the

accused is not disputed. At the spot of the incident, the weapon was

snatched away from the hands of the accused. The injury sustained

by the victim was also due to the axe, which is also supported by the

testimony of PW-7. The victim was lying at the spot of the incident,

as is clear from the testimony of PW-3. The testimony of PW-5

corroborates the fact that the accused had assaulted PW-1. All these

factors, including the fact that the accused was tied to a tree, clearly

show, in all human probability, that it was the accused who

committed the offence.

1. Thus, I conclude that by way of circumstantial evidence,

the guilt of the accused is proved by the prosecution beyond a

reasonable doubt. The presence of the accused at the scene of the

incident is not at all disputed, and only the plea of insanity is sought

to be brought on record. As already stated, reasonable doubt means a

doubt that is not based on emotion.

1. In that view of the matter, I conclude that the appeal has

no merit. Therefore, the appeal stands dismissed.

34 of 35
(35) 937criapl1244.19 60. At this stage, it needs to be stated that the learned

Advocate appointed to represent the accused, without seeking any

time, had argued the matter by pointing out various favourable

circumstances in favour of the accused. His fees be quantified by the

High Court Legal Aid Services Sub-Committee, Aurangabad, as per

the rules.

1. In view of dismissal of the appeal, the pending

applications, if any stand dismissed.

[RAJNISH R. VYAS, J. ]

VishalK/937criapl1244.19

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