State v. Emerciano Lemos .

1. This is an appeal under Section 417 of the Code of Criminal Procedure filed on behalf of the State, praying for the reasons mentioned therein, that the acquittal of the respondent-accused be set aside. The accused in this case was charged with offences under Section 302 and some other sections of the Indian Penal Code. The learned Additional Sessions Judge, Panaji, after considering the prosecution evidence came to the conclusion that the accused was of an unsound state of mind at the time of the commission of the offences charged with and therefore, he directed his acquittal. He also passed an order under Section 471 of the Code of Criminal Procedure in pursuance of which the accused was detained in safe custody. The State felt that this acquittal was not justified and consequently moved this Court in appeal.

2. The prosecution case is that the accused and his family and also the brother of the accused and his family were occupying two parts of the common family house. The two brothers were not on talking terms for the last ten or twelve years. Gabriel Lemos was their neighbour and also a distant relation. He was involved in a law suit with the wife of the accused, wherein a prohibitory order was passed against his wife. This order was obtained about four months before the incident on 16th October, 1967, when the accused killed the wife of Gabriel Lemos, and injured others. The accused was employed as a seaman and had returned about 8 days prior to 16th October, 1967.

3. On 15th October, 1967, at about 6 p.m the accused visited the house of Delicosa Mazarello, his brother's wife, and smashed one of the windows. He also threw stones at the house of Gabriel Lemos. On 16th October, 1967, at about 7 p.m when Delicosa Mazarello had gone to a neighbour's house with a view to requesting her to sleep with her and her daughters during the night the accused started banging the windows of her house which were closed; her children ran out of the house through the front door out of fear when the accused, without any provocation or warning, assaulted all of them with the stick, stones and bottles that he had with him. They sustained injuries and were taken to Hospicio Hospital at Margao for treatment. The accused, soon after this assault, started throwing stones at the house of Gabriel Lemos, and when Gabriel Lemos came out he attacked him with a stick. He also attacked Gabriel Lemos' wife, by name Ramira, with a stick, resulting in severe injuries on her head and other parts of her body. She was removed to this hospital where she died after about five days. The police were in the vicinity and when they heard the noise they came there and saw the accused in a violent state throwing stones at the people who had gathered there. The police warned the accused not to behave in that manner but notwithstanding the warning he started throwing stones even at the police. He was later caught from behind by constable Agapito Almeida, but he escaped from his grip and thereafter hit this constable with a knife he had in his hands. The constable received injuries on his left arm. The accused even attempted to pick up another knife from the ground in order to give further knife blows to the constable but the latter ran away. In the meanwhile the accused was overpowered and arrested by other policemen. He was tied with ropes and taken to this hospital and, from there, on 18th November, 1967, he was taken to the Mental Hospital. He was discharged therefrom on 11th June, 1968. The police, after necessary investigation, charged the accused under Section 302 and other sections of the Indian Penal Code. The learned Committing Magistrate committed the case to the Court of Session. The learned Additional Sessions Judge, after considering the prosecution evidence, came to the conclusion that the accused caused the death of Ramira Lemos and assaulted his own nieces and the police constable but as he was suffering from schizophrenia and as he was of unsound state of mind he did not know the nature of his act or what he was doing was wrong or contrary to law. In this view of the matter relying on the provisions of Section 84 of the Indian Penal Code, he directed his acquittal.

4. In the statement recorded by the learned Additional Sessions Judge under Section 342 of the Criminal Procedure Code, the accused pleaded that he was unaware of what had taken place on 15th or 16th October, 1967. The accused led no defence on his behalf.

5. The prosecution evidence may be briefly discussed.

6. Sebastiao Mazarello (P.W 1) is a panch witness of the scene of the offence. He is M.B.B.S having graduated from the Grant Medical College, Bombay. He is a neighbour of the accused and according to him the accused was suffering from mental disorder for the last 5 or 6 years. The accused is about 65 years old and this witness is about 66 years old and, being his neighbour, he knows him from his childhood.

7. Agapito Almeida (P.W 2) is a constable who went to the scene of the offence on hearing the noise. He saw a number of people at the scene of the offence and he found the accused pelting stones at them. This was about 7.30 p.m According to him, he and other constables told the accused that they were police officers and that he should stop throwing stones, but he continued to throw stones at them. The Police then decided to arrest him but before that the accused assaulted him with a knife on his arm. In cross-examination he stated that the accused was in “a furious state”. He lodged the first information report (Exh. 4) and, in that report, there is a statement by him that the police were informed by some people that one mad person by name Emerciano Lemos had attacked Gabriel Lemos, his wife Ramira Lemos and some others. This report also mentions that when he visited the scene of the offence he found the accused standing in front of his house armed with a knife and a big stick challenging the public that he would kill if any one went forward to stop him. It is further mentioned that Head Constable Antonio Barracho and Police Constable Madeurao Rane remained at the scene of the offence with a view to preventing the accused from further violent action. In the column “Brief facts of offence”, in this report, it is stated that “the accused person in a fit of madness went amuck and attacked the villagers and also attacked the complainant with knife.”

8. Delicosa Mazarello (P.W 3) is the sister-in-law of the accused. According to her, the accused and her husband who are brothers were not on good terms. She deposed to the incident which took place on 15th October, 1967, when the accused smashed a window of her house. She also deposed to the incident on 16th October, 1967, when she saw her daughters Nora, Sensi and Blandina, injured and bleeding. They told her that they had been assaulted by the accused in their house. She found the accused standing in front of his house threatening the people and throwing stones at them.

9. Nora Lemos (P.W 4) is a niece of the accused. She deposed that the accused, without any warning, assaulted her and her two other sisters with a stick and she saw a pile of stones, sticks and bottles near the steps of their house. Her sister Sensi, according to her was hit by the accused with a bottle. She also deposed that the accused had returned to the village about a week prior to the incident on 16th October, 1967, and that during the last two years before the incident she had met the accused a number of times in his house but the accused never assaulted her or any other family member. She saw the Police encircling the accused and firing rounds in the air before the accused was caught from behind and tied with ropes.

10. Dr. Jose Sarto Menezes (P.W 5) performed postmortem of the deceased Ramira and according to him the cause of the death was the head injury resulting in the fracture of the skull. She had also received other injuries on her body.

11. The evidence of Dr. Guiri Camotim (P.W 6) is particularly important on the question of the mental state of the accused. He was medical superintendent, Mental Hospital, Panaji, in October, 1967, when the accused was admitted in that hospital on 18th October, 1967, at about 11 p.m The record relating to admission of the accused shows that he was brought by the Police and that his hands and feet were tied by iron chains. This witness examined the accused and according to him he was suffering from schizophrenia for about 6 months prior to his admission in this hospital. He found him overtalkative and incoherent upto 31st October, 1967. He was discharged on 11th June, 1968, after necessary medical treatment. In cross-examination he deposed that schizophrenia sometimes makes a patient to act violently and in an uncontrollable manner. He gathered from enquiries that from 1963 the accused had suffered from schizophrenia and that he had been treated in U.K According to him the duration of schizophrenia is normally for weeks, months or even years together and on some occasions during this period the patient becomes violent. He also stated that there are lucid periods but when a patient has an attack of schizophrenia he is guided by hallucinations and delusions; he is not then in a position to distinguish right from wrong and is incapable of knowing the nature of his acts. This witness also added that after the attacks cease the patient can recollect what he had done.

12. Ramesh Malkarnekar (P.W 8), is a Junior Medical Officer at Hospicio Hospital at Margao. He found certain injuries on the accused after the incident on 16th October, 1967. He also found that he was violent.

13. Gabriel Lemos (P.W 10) is a neighbour of the accused. According to him the accused and he are not on good terms for a number of years. It is in his evidence that for about four months before the incident he had obtained a prohibitory order restraining the wife of the accused from extending the boundaries of her house and that the accused after his arrival from abroad about 8 days before the incident used to insult and threaten his wife that she would be killed. He referred to the incident on 16th October, 1967, when he found the accused throwing stones at his house and later assaulting him and his wife with a stick. This is the substance of the prosecution evidence.

14. It is necessary in the first place to consider the provisions of Section 84 of the Indian Penal Code and also Section 105 of the Evidence Act. Under Section 84 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. Section 105 of the Evidence Act, to the extent it is material for the present purpose, provides that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any special exceptions, is upon him, and the court shall presume the absence of such circumstances. Section 84 relates to a general exception. Illustration (a) of Section 115 reads—“A, accused of murder alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A”. It follows from this illustration and also the said Section 105 that it is for the accused to discharge the burden of proof that he did not know the nature of the criminal acts committed by him. In Modi's ‘Medical Jurisprudence and Toxicology’ different kinds of schizophrenia have been described. As will appear therefrom, a patient suffering from schizophrenia has delusions which are bizarre in nature. There is often impulsive and senseless conduct on his part as a result of hallucinations or delusions. The whole personality completely disintegrates. The patient often is in a state of wild excitement, is destructive, violent and abusive. He may impulsively assault anyone without the slightest provocation. The delusions are of a persecutory nature.

15. The facts gathered from the prosecution evidence are:— (1) that the accused was suffering from schizophrenia for the last 5 or 6 months before the two incidents on 15th and 16th October, 1967; (2) that in the past during the last two years before the incidents on these dates, he did not assault his nieces or any other family member; (3) that on 15th October, 1967, without any provocation, he smashed one of the windows of the house of his brother and threw stones at the house of Gabriel Lemos; (4) that on 16th October, 1967, he assaulted his nieces, Gabriel Lemos and his wife with sticks and bottles without any provocation from them; (5) that immediately after the assault on 16th October, 1967, he was seen with a knife and stick in his hands indiscriminately throwing stones and challenging and threatening the people who had collected there that he would kill them; (6) that he hit constable Agapto Almeida with a knife on his arm when the latter tried to overpower him; (7) that he was regarded by the people who had collected there and also by the Police as a mad person who had run amuck; (8) that the Police had to encircle the accused and fire rounds in the air before he was caught from behind and tied with ropes and iron chains; (9) that schizophrenia sometimes makes a patient act violently and in an uncontrollable manner; (10) that a prohibitory order had been obtained by the deceased Ramira Lemos wife of Gabriel Lemos about four months before the incidents on 15th and 16th October, 1967; and (11) that the accused had returned from abroad, a week before the incidents. Mr. S. Tamba, learned Government Pleader, relies mainly on the evidence of Gabriel Lemos that after returning from abroad the accused used to insult and threaten that he would kill the wife of Gabriel Lemos. Gabriel Lemos and the accused admittedly are not on good terms and beyond the uncorroborated testimony of Gabriel Lemos there is no other evidence to show that before these incidents, the accused threatened to kill the wife of Gabriel Lemos. Gabriel Lemos cannot be regarded as a disinterested witness. The niece of the accused by name Nora Lemos (P.W 4), has not deposed to these insults and threats. The prosecution have also not examined any other neighbour on this point.

16. Barring the evidence of Gabriel Lemos there is no other evidence to rebut the argument of Mr. Bernard D'Souza, learned counsel for the accused, that the provisions of Section 84 of the Indian Penal Code are attracted in this case. According to Mr. S. Tamba, the accused had a motive to assault the wife of Gabriel Lemos because of the prohibitory order obtained against the wife of the accused. This may or may not be so but when a patient is having an attack of schizophrenia not infrequently he attacks those against whom he has grievances, real or imaginary. He considers that he is persecuted, when in fact he is not. It is a case of impulsive insanity. He was at that time a man at his worst, little above animals. Mr. B. D'Souza argues that if the accused were in a sound state of mind, he would not attack constable Agapito Almeida with a knife. He would not be challenging and threatening the people who had collected there and throwing stones at them indiscriminately. He would have remained content with assaulting the deceased Ramira and her husband who had given him some cause, but would not assault his young nieces who had given him no cause. He had never assaulted them in the past. He would have concealed the stick, knife, stones and bottles used in attacking the deceased Ramira and others, but all these weapons, of attack were found at the scene of the offence. He stood in front of his house like a mad man with a knife in his hand threatening the people who had collected there. He was regarded as a mad man by the people who had collected there and the police. He did not tell anyone that he had attacked the deceased Ramira and her husband Gabriel Lemos because of the prohibitory order obtained against his wife. He would not have been tied with ropes and chains. He did not run away. He was treated of schizophrenia at London before he returned to his village. The antecedent and subsequent conduct of the accused, according to Mr. B. D'Souza, shows that the accused was incapable of knowing the nature of his criminal acts or that he was doing what is either wrong or contrary to law. The medical evidence also supports the statement of the accused.

17. Mr. Tamba relies on ‘Jai Lal v. Delhi Administration’ AIR 1969 SC 15, “State of Madhya Pradesh v. Ahmadulla’, AIR 1961 SC 998, and ‘Dahyabhai v. State of Gujarat’, AIR 1964 SC 1563, in support of his contention that the accused did not discharge the burden of proof imposed upon him, in terms of illustration (a) to Section 105 of the Evidence Act.

18. Mr. B.D'Souza relies on ‘Karma Urang v. Emperor’, AIR 1928 Cal 238 ‘Ashiruddin Ahmed v. King’, AIR 1949 Cal 182 and ‘Narain Sahi v. Emperor’, AIR 1947 Pat 222, in support of his contention that the facts established prove that the burden of proof was discharged by the accused.

19. The decisions cited may be briefly reviewed. The facts of AIR 1969 SC 15 are clearly distinguishable and Mr. B.D'Souza is right when he submits that this decision is not helpful. The appellant in the special appeal before the Supreme Court entered the house of his neighbour Somawati on November 25th, 1961, at about 1.45 p.m and stabbed her daughter Leela aged 1 and half years with a knife. He inflicted five stab wounds, on different parts of her body. The injury on her back proved fatal. Leela died in the hospital at about 4 p.m The appellant then returned to his house and bolted the front door. A crowd collected near the front door and raised an alarm. After sometime the appellant went out by the hack door and stabbed another neighbour Parabati and then Raghubir who tried to intervene on her behalf. Raghubir and others tried to apprehend him. He then ran back to his house, bolted the door and started throwing brickbats from the roof. He was later arrested by the police. The appellant in this case had a long standing grudge against Baburam, uncle of the child Leela. This enmity was said to be the motive of the attack by the appellant on Leela. The defence plea in this case was of insanity. According to the evidence noticed by their Lordships of the Supreme Court, on the morning of November 25th 1961, the mind of the appellant was normal. He went to and from his office all alone. He wrote a sensible application asking for casual leave for one day. Nobody noticed any symptoms of mental disorder at that time. He left the office at about 11.30 a.m and returned home alone. At 1.45 p.m he stabbed Leela, Parabati and Raghubir with a knife. He concealed the knife and a search for it proved fruitless. At 2.45 p.m the investigating officer came, arrested the appellant and interrogated him. He was then found normal and gave intelligent answers. On the same day he was produced before the Magistrate. His brother was then present but the Magistrate was not informed that he was insane. The state of his mind before and after the crucial time when the stabbing took place was that of a normal man and, therefore, the provisions of section 84 were not attracted. He did not lack the requisite mens rea. Mr. B.D'Souza is right when he states that the general burden is on the prosecution to prove beyond doubt not only the actus reus but also the mens rea. The conduct of the appellant in the case at the bar on 15th and 16th October, 1967, and thereafter was not that of a sane man.

20. In AIR 1961 SC 998; the established facts were that the accused bore ill-will to the deceased and the murder was committed at dead of night when he could not be seen. He took a torch with him and then stealthily entered the house of the deceased by scaling over a wall. There was further the mood of exaltation which the accused exhibited after he had not the deceased out of her life. The Supreme-Court held that it was a crime not committed in a sudden mood of insanity but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy. There was no mood of exaltation on the part of the accused after the assault on 16th October, 1967. There was no careful planning as in the case dealt with by the Supreme Court. The obtaining of the prohibitory order was not an act which should have made him act like a mad man. The motive seemed to be trivial and inadequate. This decision also does not help the State.

21. In AIR 1964 SC 1563, the entire conduct of the appellant from the time he killed his wife up to the time the Sessions proceedings commenced was inconsistent with the fact that he had a fit of insanity when he killed his wife. He did not like his wife. He wrote a letter to his father-in-law to the effect that he did not like her and that he should take her away to his house. The father-in-law promised to come. He expected him to come on April 9th, 1959, and tolerated the presence of his wife in his house till then. The father-in-law did not turn up on or before April 9th, 1959 and therefore, the accused in anger and frustration killed his wife. The existence of the weapons in the room the closing of the door from inside, his reluctance to come out of the room till the Mukhi came seemed to indicate that it was a premeditated murder and that he knew that if he came out of the rooms before the Mukhi came he might be manhandled.

22. The Supreme Court summed up the doctrine of burden of proof in the context of plea of insanity in the following propositions:— (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 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 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; and (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 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. The prosecution evidence — oral and circumstantial—helps the accused in this case and, I think, he has been able to rebut the presumption that he was not insane at the time of the assaults on 16th October, 1967. The aforesaid decisions of the Supreme Court do not help the State in establishing that the case of the accused is not covered by Section 84 of the Indian Penal Code.

23. It is not necessary to deal with the facts in AIR 1928 Cal 239, except that it may be sufficient for the present purpose to apply one of the common tests laid down by the learned Judges of the Calcutta High Court. That test is to ask, in the circumstances, whether he would have committed the act if a policeman would have been at his elbow. This authority is cited by Mr. B.D'Souza in order to show that the accused did not even spare constable Agapito Almeida when he hit him with a knife on his arm and that even if Police were present, he would have assaulted the deceased Ramira and others. In AIR 1949 Cal 182, the accused was clearly of unsound mind and acting under the delusion of his dream, he made a sacrifice of his son believing it to be right. He was therefore entitled to the benefit of Section 84, in spite of the confession made by him which was later retracted. In AIR 1947 Pat 222 a distinction is made between legal insanity and medical insanity and a standard to be applied in determining legal insanity is indicated. According to this decision, where a plea of insanity is raised under Section 84, the Court has to consider two issues:—

(1) Whether the accused has established that at the time of committing the act he was of unsound mind; and (2) If he was of unsound mind, whether he has established that the unsoundness of mind was of a degree and nature to satisfy one of the knowledge tests laid down by the section. I agree with Mr. B.D'Souza that these requirements are satisfied in this case. Unsoundness of mind is a matter of inference from his previous act subsequent act and behaviour.

24. I agree with Mr. B.D'Souza that the presumption that the accused was insane at the crucial time has been rebutted. Every man is presumed to be sane. This presumption does not apply to a man whose case is governed by Section 84. The learned Additional Sessions Judge was satisfied that the case of the accused was governed by this section, and this conclusion of his receives support from the prosecution evidence. It may be stated in this case that the prosecution did not examine the investigating officer. He might have further supported the case of; insanity in view of what is stated in the first information report. This omission is I serious. Section 84 mentions the legal test of responsibility in case of alleged unsoundness of mind. It is by this test, as distinguished from medical test, that the criminality of the act is to be determined. This section, in substance, is the same as the McNaghten Rules. These Rules in spite of long passage of time are still regarded as the authoritative statement of the law as to criminal responsibility. It is not the case of the prosecution that the accused was drunk at the crucial time. He seemed to be under delusion and hallucination when he assaulted the deceased Ramira and others. A person labouring under delusion and hallucination is to be in the same position as an insane man. This is not a case of a morbid man thirsting for human blood. This is a case of sudden impulsive insanity which had its roots in schizophrenia. He seemed to have an attack of schizophrenia on 15th October when he started smashing a window and throwing stones. It is a pity that he was insane at the crucial time. It is a greater pity that Ramira was killed, but though this be an act of madness, yet the evidence does not show that there was method in his madness. The presumption of innocence of the accused is further reinforced by his acquittal by the trial court. This presumption also applies to a man whose case is governed by Section 84. He should be given the benefit of this section. In the view taken of this matter the appeal against acquittal fails and is accordingly rejected. The decision of the learned Additional Sessions Judge is maintained.

25. I would like to make some general observations before closing this case. In the notes on arguments maintained by the learned Additional Sessions Judge, the learned Public Prosecutor stated:—

“If the court feels that the accused was unsound of mind at the time he committed this offence, he should be taken in safe custody so as not to put in risk the lives of others”.

26. It may be that the learned Public Prosecutor was satisfied that the case of the accused was covered by Section 84; in that case he should have made a bold statement that he should not support the prosecution. Government Pleaders and Public Prosecutors owe a duty to the courts, and that duty is that when they are convinced that the prosecution case cannot be supported, they should state so fearlessly and boldly regardless of instructions to the contrary. In this connection I may cite the classic observation of Crompton, J., when he dealt with the suggested doctrine at the bar that counsel was the mere mouthpiece of his client:—

“Such, I do conceive, is not the office of an advocate. His office is a higher one ……………………… He gives to his client the benefit of his learning, his talents and his judgment. He has a prior and perpetual retainer on behalf of truth and justice”.

27. Appeal dismissed.