CRIMSNAL v. State of IVSadhya Pradesh

>N'BLE SHRI L.C. BHADOO AND HON'BLE SHRI DHIRENDRA MISHRA, JJ CRIMSNAL PPEALNO. 674 of 1996 AppeJiant HiranKanwar Vs. Respondent State of IVSadhya Pradesh Shri Avinash Mishra, learr^ed ed counsel for the appeilant. Shri U.N.S. Deo, learned Sovt. Advocate for the respondent/State. ORIALJUDGMENT 1(28.08.2006) Per L.C. Bhadoo . J The appetlant has prefen |ed this appea! under section 374 (2) of the Code ofCrimina! Procedure thro jgh Superintending of District Jail, Ambikapur against the judgment dated 2.2 ^1996 passed by Additional Sessions Judge, Ambikapur in Session Tria! No. |96/93 whereby he has been convicted under section 302 of the indian Pena Miyan and sentenced to under Code for committing the murder of Musfim 'feo imprisonment for iife and pay a fine of Rs.2,000/-, in default of paymer i| of fine to further undergo imprisonment for six months. P.T.O. XI-HC-78 3^T ^i^icn^, ^TT1^4i(o, f^^ti^^< ^^ *11*1<11 »>*11<sb c^.^^.^<ZC/^f^. 200 3TT^?r^ra^F (yit^<s<^) ^n^T^rf^ri^ cTSTT 3TT^T ^TT^ ?^TT^: ^rf?cT 311^1 chi^I<n<41Ti WT^ff ^ te^ <r3i<-<.i< ^3:ff^1:f3^T Case of the prosecution in bri 3f isthat on 11 .4.1993 at about 2.30 p.m. laccused Hiran Kanwar attacked the < leceased Muslim with axe on his head as |a resuit of which his skuli bone was fi actured. The lacerated wound was sn the |size of3 x % x14 cm on the right t^m *^*» porai region. Whiie Muslim was being taken to the hospita! he succumbed [o the injuries sustained by him. Mr. K.R. ITirki, Station House Officer of Pol| |ce Station - Kusumi who was already jpresent the vlliage on the d^te incident in connection with the investigation of some other crim^ was informed about the incident by |Chowkidar Ramviias, Devprasad, Ra| ahiakant and Gariba cn which he recorded |the Dehati Nafishi (Ex.P/5). Merg it htimation (Ex.P/6) was given by Jitendra »ingh, the Head Constabie and fc(ased on that, First information Report |(Ex.P/1) was registered. Mr. K.R. T| rki took up the investigation. Ctothes of [the deceased were taken into posse|s e|ssion under Ex.P/2. Weapon of offence i.e. axe was taken into possession ft| <om brother of the accused under Ex.P/3. |Site pian (Ex.P/4) was prepared by| Halka Patwari. Thereafter, body of the (deceased was sent for postmorterr'1 examination to Primary Health Centre, (Shankargarh where Dr. F.R. Niraia (|PW-7), Assistant Surgeon conducted the Ipostmortem examination and subr^itted the report (Ex.P/14) in which he |opined that cause of death was shoi >t;k due to head injury and mode of death |was homicidal. After compieting tf |e investigation charge sheet was filed in P.T.O. ^- 1 @ XI-HC-78 3^T ^l^Krt^, ^Tn^4l<o, f^dl^y HWW\ Stt+lich ri^(^.^.^..^^< ^ 200 3TT^?T ^^^ (t?^^) 3TT^T^T^i4) cTSTTW^T^TTO ^RTTW: ^cT 3TT^T -3- <=hi^f^4)ri w^ff ^f tel<Ft <f^^i< ^^rf^TW^T the Court of Judiciai Magistrate Fir^ st Ciass, Ambikapur who in turn committed •^ the case to the Court of Sessiods s Judge, Ambikapur from where learned Additiona! Sessions Judge receivec| the same on transfer for tria!.

#3. Prosecution establish charge against accused/appeiiant has examined ^ |s many as eight v^ltnesses. Statement of the accused under Section 313 of the Cr.P.C. was atso recorded in which he p!eaded ignorance about r(naterial appearing against him in the prosecution evidence and stated | that at the time of incldent his mental condition was not perfect. He furttT|er h|er stated that he is innocent and has been falseiy impiicated in the crime in qu^stion. Learned Additiona! Sessiohs Judge after hearing the arguments advanced by the Additional Pu^iic Prosecutor as a!so counsel accused/appellant has convicted ar|id sentenced the accused as mentioned in paragraph one of this judgment.

#5. We have heard Shri Avinastji Mishra, learned counse! for the appeiiant and Shri U.N.S. Deo, iearned Govt.|Advocate for the respondent/State.

#6. Learned counsei for the ap|3el!ant has not disputed the.fact that the natyre of death of Muslim was h tmicidal. Apart from this, Dr. F.R. Nirala P.T.O. i XI-HC-78 3^T •^ll^lcn^, ^Tn^l4l(o, f^crtl^y ^ .<^,.iy?....<.^.'r/^. 200 +11*1^11 5hHT^» 3ni(?T ^ra^ (^c(i^s(<^8T) ^n^r^rf^TT^ ^r5b^|cb ^RTTW^T^n^T -^- chi^?<n41ri HT^rf ^ te^ <f^<-cii< ^3Tf^R'3:n^T (PW-7) who has conducted the p| |3Stmortem examination on the body of the deceased has stated that there w^ f^s one lacerated wound on the head in the size of 3x ^ x % cm, blood was o<| })zing from the said injury and the skul! bone was fractured which had pierced ii| iihto the brain, membranes of the brain were found ruptured and the death Iwas homicidal in nature. Evidence of eyewitnesses PW-3 Hasiman Bibs,| |the wife ofthe deceased, PW-4 Guthul and PW-6 Gariba estabiishes the in^ loivement of the accused in the crime in question as it shows that the accL| Ised attacked the deceased with axe on his head as a result of which he sust^ined injuries and succumbed to the same while being taken to the hospital ^nd therefore, from the ocular and medicai evidence it is established the deatll ¥/ashomicidal in nature.

#7. As far as invoivement of the accused in the crime in question is concerned, iearned counse! for t| |e accused/appellant at the outset argued that the accused/appeliant has w| tongiy been convicted as he was suffering from insanity at the time of com< ^iissjon of crime and therefore, in view of sectson 84 of the iPC the accus^ ^d is entitled for benefit of the same. He further submits that from the pros^ ^cution evidence it is established that at the time of commission of the crime thl ^ accused was suffering frorn jnsani'ty. P.T.O. •^^^ S! C^) XI-HC-78 3^T ^ll^Krl^, ^Tfl^JI(o, f^^wy tTW^TT ^WTcb ^.^-.-..f.^/^ 200 341^1 ^5<ch (^li^^) 3:n^T^T^i<=b cT^T3TI^T^W^ ?;RTTW ^f^r ^n^r -4-- chi^?<n41'ri ^i^^it*^ftel:^t<^i^i< ^3Tf^T3TT^T

#8. On the other hand supporfling the impugned judgmentof the tria! Court iearned counsel appearing for th( respondent/State submits that it is true that the defence has taken the plea of| insanlty but no evldence has been produced by the defence to estabiish th4 ;t the accused was insane at the time of commission ofthe crime in quest) on. He argued that in view of section 105 of the Evidence Act the burden lie^ accused/appellant was suffering f| > on the defence to prove the fact that the •om insanity at the time of incident.

#9. In order to seek protection| under Sectlon 84 of the !PC, the onus is on the accused to establish that at| Ithe time of commlssion of offence he was suffering from unsoundness of mi j-id. Section 84 contemplates that; 'Nothlng Is an offence wfriich is done by a person who, at the time of doing it, by r^ ^ason of unsoundness of mind, is incapable of knowing th| ^ nature of the act, or that he is doing what is either wron^ or contrary to law. Therefore, when a plea of legai jnsanity is set-up, the Court has to ascertain whether at the time of commission of offence the accused, under supervening circumstances on account of unsoundness of mind, was incapable of knowing the nature |of act or that he was doing what was either P.T.O. XI-HC-78 ^3^[ ^ii^icn^, ^Tn^Ji<o, fa<ni<ri^< w^Tg^^./.^..^y^ 200 311^1 ^5icn (<ic<i^<s«^T) ^n^T^Tf^TF^ cT^T3n^T$h^l<ti 5^TT^K ^rf?cT 3T^?r ^ 6— <=bi^I<n<TITi ^i^^T£ftec^'<^i^i< ^3:rf^T3TT^T wrong or contrary to the law. The ^rucial point of time for ascertaining the state of mind of the accused is the tii tsrhe when the offence was committed and in order to ascertain whether the ^ce ^ccused was suffering from unsoundness of mind as to be entitied to the ^enefit of Section 84 of IPC can only be estabiished from the circumstan^es n4es, which preceded, attended and followed the crime, In this connection, a| ^ per the provisions of Section 105 of the Evidence Act there is burden on accused to discharge the same in order to clajm benefit ofSection 84 ofthe .P.C. Section 105 envisages that; "When a person is accused of any offence, burden of proving ti^e existence of circumstances brining the case tfvithin any of the Genera! Exceptions in the !nd| |an Penal Code, 1860 or within any specia! exceptioji or proviso contained in any other part of the samje ^ Code, or in any taw defining the offence, is upc^n him, and the Court shail presume the absencel of such circumstances. The provlsions of section 84 of |PC read with Section 105 of Evidence Act came up for consideration befor^ ^ the Hon'bie Apex Court in the Matter of P.T.O. T^ "3^ XI-HC-78 T^T^ii^icn^, ^TTl^4i<o, f^di^y *11*1<11 ?h*1ich ^^:^.^.:^.^./5.{. ^ 200 311^1 ^5<cb (yiI^^T) ^T^T^T^Jch cT8TT3TT^T$b^|cb 5^<ITW: ^fgcT 3:n^?T -7- cbi^foi4iTi ^i^criT ^ r^L^ <[^^i< ^3Tf^TW^T Vs of Gujrat r4'pori:ed in 19S4(7)SCR 3§1 and the Hon'bie Apex Court lield that; !\..,Even the accUsed not able to establlsh conciusiveiy that he| .v^as insane at the time he •committed the-offenc.4, -, the evidence piaced before the Court may ralse a re^sonable doubt in the mind ofthe court- as regards one or' more of the Ingredients of the offence, inciudlng mei| is rea of the .accused and in that case the court' would on the ground 'that th| p3c entitied to acqirit the accused 'burden of proof restlng generai on the prosecution v^(s not discharged, The burden of proof on the aocvsed 'upon than that rests |o prove the insa-nity is no higher a| partyto civil proceedings, \'yhlch, words, preponderance probabilities...." The Court further held that doct.rin i of'burden of proof in the ccntext of piea of insanity may be stated in the foilo^ nawords: P.T.O. XI-HC-78 3^T r^j^l<rt^, ^Tn^^l^, ^cni^^< '-S^) *ii+i^i a»*iich . C-^^u^ • •'-<•'• ••'"<'• •••••^^•••^ W[ 200 3ii^i 45<ch (y^^^r) ^n^T^Tf^Tt^ cT8TT3:TT^Tsti^[ch s^rrw: ^rfN'^n^r -8- cbl^f^1<41r1 WT^ff ^f tec^' <f^^l< ^3:rf^TW^T (1) the prosecution must prove ^ ^eyond reasonabie doubt that the accused had comml tted the offence wth the requislte mens rea; and ths| byrden of proving that ah^ys rests on the prosecut'l on frorn the beginning to the end ofthetrial. (2)' there is a rebuttable presumpl ;lon that the accused was not insane, wtien he cornmjtt^ ?d the crirne, in the sense iaid dowrs by S.84 ofthe Pen< i! Code: the accused rnay it by piacing before tl ie couit ail the reievant evidence-orai, documentary )r circumstantiai, but the burden of proof upon him is no higher than that rests upon a partyto civil proceedlr the accused -v^s (3)- Even ^gs: tc' establish co'ncluslveiy that he was insane at the tlme he committed the offence, the e\ I'idence piaced before the court mayraise a reasonabie doubt in the mind ofthe court as regards one or mor^ of'th'e ingredients ofthe offence, jnoiuding'rnens rea ( I'fthe accused and in that case the court wouid be entit |ed to.acquit the accused P.T.O. XI-HC-78 3^T ^ll<41d^, 81x11 •M<1<S, ^l<niy^< +11+«Tr»i+1|ch * C^'^.Ho. ^ 200 311^1 <45|ch (^cit^q^) w^i^rR^icb cfSTT 3TT^T ^TTT^ 5^<TTW: ^rf^T 3TI^T -y. chl^fo41-l W:loff ^ te^t <fa<-<ll< ^3Tf^TT3TT^T on the ground that the gene| 'a! burden of proof resting on the prosecution w&^ not c| ischarged" Therefore, th^ prosecution, a case of homicide shaii prove beyond reasonable doubt that the'accus^d caused dea.th with the requisite intention •described in Sectlon 299 ofthe !n|dian Pena! Code. This generai burden never shifts and it a!\?vays rests on th|^ ie prosecution» But, under Section 105 of Evidence act the burden ofprovln|g the existence of cjrcumstances brining the case withln the said exception iies| on the'accused/and the court shali presume the absence ofsuch circumstanc^s s. The accused has to rebut the presumption that such circumstances did notl exist, by placlng material be'fore the court suftlcjent to make it consider the ^xistence o-f such circum^ances sa probable that a prudent man' would act i.| pon them. The accused has to standard''of a 'prudent man< if th| 9 material piaced before-the court, such as, oraS and documentaiy evidenc^ ;-, presumptions, admissions or even the prosecution evidence, satisfies th'| 3 test of'prudent rnan' the accused wlji have discharged his burden. 10, !n the iight of the above i^ |wiaid do^n by the Apex Court we Siave to scrutinize the evidence avaiiab.ie dn record. P.T.O. ^) XI-HC-78 3^T ^l^Krl^, ^Tfl^^Ko, f^Qll^^< *<l+1^l Sh+licb TT-^ c^^\ ^Lf/^. ^ 200 3TT^T (4^ch (yii^q^) 3:TT^T^)T(<^i<=h ^TT3TT^T$h^|cb ?^cTT^T ^T^T^T ~ ^^ °bl^f<yl<41v1 WToTf ^f f^t <?^<<<i« ^^Tf^Tr3T^r

#11. In the first instance if we !odl k into the Dehati Naiishi which was recorded by Station Hbuse'QfS'icer of Polic< Station Kusrni who by chance aiready present in the viiia.ge in connectior| with investigation in some-other crime, was informed that since iast three--fol ir days the accused was mentaiiy upset, therefbre, he went to vi!iage Marra| Dhora. Deceased Musiim, Guthui, Ganga, Meghnath, Gulab etc, aiso went there'to bring him ba.ck, Musijm had aiso practiced magic on the accused |o cure him. He took hirn to the house and locked h Im In a room. Thereafter, iccused Hiran came with axe frorn the room and attacked Nlusiim wth the sail |i axe.'who was standing by the road slde/ PVV-3 Hasiman Bibi, the wife ofth^ deceased has stated in her examination irs chief' that accused attacked he| husband with axe twice, In the cross examination she has admitted thatl |there ^rvas no dispute betvv?een her husband and the accused. Accused IOV^TI to her for last 8-10 years and on the fatetil day a bus was standing in tl' |e viliage and the accused started hlttlng the bu<3 v.ith the axe. However, bus !|3ft the piace. She aiso adrnitted that on the date of jncldent the vil!agers Sock^ |d Hlran for one hour in a roorn considering that the accused ^^as overpow^3re| |j by the evj! spirit and'before that accused was never iocked in the room. Wh| i|en accused came out ofthe room wth axe, the vlliagers tried to catch him but {ie had run away and attacked her husband .wlth axe, She has further stated th| ^.t it is correct to say that he was considering P.T.O. XI-HC-78 3^T ^l^Kn^, ^Tfl^^Ko, {sldiy^ +11+1HI ?h+1T^i .^^^.<^/^< ^[ 200 3TT^?T1T^T (li?<^sl^.l8T) W^T^rl^Tt^ cT§TT3TT^Ts^^[cb ^cTTW efN'3TT^T ~'l—l <=hl^f^l41v1 HTR^ff ^ fe^ <r3l^l< ^3Tf^T3TT^T himself as. God. PW-4 Guthul h| as stated in his evidence that the accused attacked the deceased 'with axe and thereafter he went towards the village ca.ri^'lng axe in his hand and see| ing this the vliiagers hid themseives In their houses. In the cross examination.l his witness has stated that it Is correct to say that the accused was not mental iy perfect. It is true that the viilagers w^re scared that the accused should nc| A attack anyone ^th axe. It is true that there was no dispute betvreen theacc) used and the deceased and they M^QFQ on taiking terrns. He has aiso stated| that he is not in a positlon to-say that how long the. accused wa.s suffering irorn nientai iliness. PMM-Q Gariba has aiso stated In hls cross examination th| at accused ^A^as mad but since when he wa.3-- iTiad jt was not kno^Mt to' hini, Ti1 e accused was not havlng'any dispute with anyone in the viliage and the acc^ sed and the deceased were on taiking tenriS on the date ofinciderst. it Is true t| lat the viilagers had iocked the accysed in a room for one- hour on the date of| incident. He was bcked in the room $o that he is not able to attack anyone. t is aiso true that on the falefiii day wlien a bus came in the vliiage he hit it ^ ?ith the axe. Even though Dr. T. Sai, (PW-8) has stated in his evidence/that he] examined the accused'on 14.7,199.3 and on that day hls mental condition was perfect and he was taiking properiy yet in the cross examination this wtness hi ts stated that before examining the accused he had.no occasion to examinel any person su'ffering from niental lliness. P.T.O. XI-HC-78 3^T ^l^ld^, ^Tn^^Ko, ^ldl<rl^< *1(+1<-ir<?b^[T^i —.^^•^.< ^-RT 200 sn^T^ra^? ('{di^^sr) ^n^T^rR^ich ^T $^*TW ?^TTW ^fN'3TT^T -/^- chi<M?<yi41vi WT^rf ^ te^ <r3i^i< ^3Tf^R'W^?T Moreover he hacl not conducfed t| he test regardliig the menta! conditlon of.the accu^ed in a scientific manner tc^ ascertain that v/hether on the reievant date i.e, the date of cominisslon of crin] ie the accused v/as suffsrlng frorn insanity or not, The incident in this case to| ?k place on •11.4,1993 v^ereas the accused was exaniined by this doctor on

147.1993. Tnerefore, the eviden.ee of thls ^tness Is of.no avai! to the pros^ cution as he v^s not an expert in the fielci of Psychiatry.

#12. If we exam in e- th e eviden c^ ofthese prosecution vvitnesses in the llght of the aforesaid judgment ofthe Ap^ x Court, it is apparent that injtiaily the burden is on the prosecution to establisi'l the ingredients of the offence and requisite Intention of the accused describe! d in section 299 csfthe IPC. Frorn the above 'evidence of the witnesses-it is' cll ^ar-that accused and the deceased ^^re on .'taSklng'terms and there was no a'1 imosity between the tw). It has also com e In the evidence avaliable on record that the accysed was behavin'a iike a mad man and therefore, on the date l)fincident he locked.in a room for one hour and thereafter he came out rftlie rooni and attacked the deceased on his head wlth the axe ^o \/vas'st^ .nding by the side of the road, The above- circumstances wtiich have com |e in the prosecution evidence show that intention to cause death ofMuslitT was mjssina in this case. P.T.O. p XI-HC-78 3^T ^l^Krl^, ^Tn<rl41(o, Rtcni^^< *11*1^(1 ^HT^» • • •'•'••^ •'•.^"•^ •••'••/•/•••' .&..^^^..<^/% ^[ 200 OT^r^ra^? ('ic'^dc<<^8r) ^n^rqTT^ich cTSTT3TT^T$b^|ch ^TTW^f^^T -/J cbi<M?<yi41-i nwoTf ^f te^t <?^<-<.i< ^3:rf^R'3:n^T 13, . Now.as far as the questic) :n of insanity is concerned, as per the above judgment ofthe Apex Court the x.irden on the accused is no hlgher than that rests on the party in a GJV!! proc€|eding, therefore, from the evidence avaiiable on record the preponderance of ^ 'di-Bcussedl

#14. As has been •robabiljties is to be seen. above, In the cross examination 'of prosecution witnesses mentione<| I above it has com'e in tiie evldence that the accused !eft the viilage 3-4 days brior to the date of incident and the deceased aiong with other villagers had goi'| |e Jn search ofth-e accused, he brought him to the vjliage and iocked in. a room| [and was treating him by practicing magic for menta! iliness and in that proc^ |ss the accused came out wth' the axe and attacked the deceased vvith. it on |his head MVJIO \¥as standing by tlie side ofthe road, Before that accysed'alsol hlt. the bus with the same 'axe v^iich standing in the vlilage. A!l these |circumstances go to show that at the tlme of conTmisslon ofthe crimethe accij |sed was suffering from unsoundness of mind. At the time of commission.of crird |e on account ofinsanltyhe v'/as incapable of kno*A?ing the nature of his act th |t he is doing ^viiat is either ^vrong or contrary to iaw. Therefore, \ are oftiie |;onsidered opinlon that the accused/appellant is entitled for the S^enefrt of secti^ |n 84 ofthe iPC and thus the conviction ofthe appeiiant under sectlon 302 ofth| |e IPC and the resultant sentence imposeci on P.T.O. XI-HC-78 S^T^II^M^, ^xfl^Ko, [®ldiy^< ^IHW St»+1|ch ___ <"^^.//o. ^ 200 3T(^T 1^97 (t^f^^) ^TT^T^^Jch cTSTT3TI^T$b^i<=h ?^rrw^<T3n^T —^ cbl^f^^-t HTTOT ^f tel^t <fa^l< ^^rf^TW^T h Im by the trial Court cannot'be. sustainecl as the same is not based on lega! princjpies of criminal jurispruden^ ;e as the prosecution has not been able to establish the ingredients necess jary for cosistituting the offence of murder. More -over, frorn the evidence a\tai!abieon record the probabllity of accused being of unsound mind cannot' be Iruied out.

#15. In the result, the appeal is ilowed. Impugnedjudgment ofthetria! Court is set aside and the accused is a4c|yitted ofthe charge ievelec! against hirn. He be set at llberty forth^th if not re^uired in any oth-er case as the record sho\lvs that'the accused is In detention sitice 1993. Sd/- L.C, Bhadoo Judge ^°- ^ Sd/- Dhirendra Mishra Judge w< P.T.O.