Criminal Appeal No. 474 of 2007 · Chhattisgarh High Court · 2013

(PW-9) lodged merg intimation (Ex-P/9) and First Information Report (Ex-P/7) in Police Station Basna. Deceased Lakshmi was taken to Community Health Centre, Basna, where she died. Investigating Officer reached Community Health Centre, Basna, gave notice (Ex-P/4) to Panchas and prepared inquest (Ex-P/5) on the dead body of the deceased. The dead body was sent to Comraunity Health Centre, Basna for postmortem >s>, 8 1< examination. Dr. MK Naik (PW-5) conducted postmortem exainination on the dead body of the deceased and gave his report (Ex-P/2), finding (i) abrasion, 2cm x 0.1cm horizontal, middle of left clavicle on the chest (ii) abrasion, lcm x 0.1cm on the vertically oblique on the left side of the neck below thyroid cartilage (iii) abrasion, lcm x 0.1cm below injuiy No.2 (iv) abrasion, lcm x 0.1cm below injury No.3 (v) abrasion, 2cm x 0.1 cm on right side of fhe neck. He opined that cause of deafh was asphyxia due to drowning and mode of death was horaicidal in nature. In further investigation, raap (Ex-P/3) was prepared by Patwari Sunil Kumar Sahu (PW-6). A pair of black shoes was seized from the place of occurrence vide Ex- P/6. After completion of the iiivesdgation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Saraipali, who, in turn, committed the case to the Court of Sessions Judge, Mahasamund, who conducted the trial and convicted and sentenced the appellant as mentioned above.

3. In support of its case, the prosecution has examined Gop Bandhu (PW-1), Devendra Kumar (PW-2), Rishabh Kumar (PW-3), Ganpati Chand (PW-4), Dr. NK Naik (PW-5), Patwari Sushil Kumar Sahu (PW-6), Rojina Nand (PW-7), Kotwar Thakur Ram (PW-8), Ku. Reeta (PW-9), Safed Kumar - father of the deceased (PW-10) and Station House Officer Pranesh Dubey (PW-11). The appellant did not examine any witness in his defence.

4. Smt. Fouzia Mirza, learned counsel for the appellant submitted that the appellant was a person of unsound mind at the dme of commission of offence and his act comes within the general exceptions provided under Section 84 of the Indian Penal Code. She further submitted that the evidence of prosecution witaesses is not reliable. Their evidence is full of contradictions. Their evidence, being not Glinching and cogent, cannot be based for conviction. Hence, the appellant deserves to be acquitted. She placed reliance on State of Rajasthan Vs. Shera Ram alias Vishnu Dutta, (2012) 1 SCC

5. On the other hand, Shri Adil Minhaj, leamed Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge does not warrant any interference of this Court. "\-

6. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No.21/07. The conviction of the appellant is based on the testimonies of Reeta (PW-9), Gop Bandhu (PW-1) and Rishabh Kumar (PW- 3). In the instant case, during the argument, learned counsel for the appellant submitted that the appellant was a person of unsound mind at the dme of commission of offence. We have perused the record of the Courts below. The accused has not taken defence of unsoundness of his mind before the trial Court.

7. Now, we shall see whether the accused/appellant was actually insane at the time of commission of offence? In view of the plea raised, it is desirable to consider the raeaning of expression 'unsoundness of mind'. In the contest of Section 84 of the Indian Penal Code and for its appreciation, we deem it expedient to reproduce the same. It reads as follows: "84. Act of a person of unsound inind.- Nothing is an offence which is done by a person the time of doing it, by reason of who, at unsoundness of mind, is incapable of knowing fhe nature of the act, or that he is doing what is eifher wrong or contrary to law.

8. Section 84 of the Indian Penal Code deals with general exception. On a plain reading of the above provision, it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is not capable of knowing the nature of the act, or what he is doing, either wrong or contrary to law. The Hon'ble Supreme Court has considered fhis question in Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66, in which it has been held as follows: "The standard to be applied is whether according to the ordinaiy standard, adopted by reasonable raen, the act was right or wrong. The mere fact that an 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 had affected his eruotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that behaviour was queer, cannot sufficient to attract the application of this section." 7

9. In Surendra Mishra v. State of Jharkhand, 2011 AIR SCW 458, the Hon'ble Supreme Court has obseryed as follows: "9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning different contexts and describes varying degrees of mental disorder. Eveiy person who is suffering from mental disease is not ipso facto exempted from criminal Uability. The raere fact that the 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 behaviour or the behaviour queer are not application of Section 84 of the Indian Penal to attract sufficient Code. ^'..•c^ .<w^"

10. Next question consideration is as to on whom the onus lies to prove unsoundness of inind. In law, the presumption is that eveiy person is sane to the extent the natural that he knows The burden of consequences of his act. proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on fhe accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. has to be discharged by producing evidence as to the conduct of the accused prior to the offence, The onus conduct irumediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even accused establishes unsoundness of mind, Section 84 of the Indian penal Code will not corue to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following Behaviour of an accused crime. pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain ^l^. as to whether, he knew the consequences of the act done by him. ......."

10. 361, In Dahyabhai v. State of Gujarat, 1964 (7) SCR "the the Hon'ble Supreme Court held that prosecution, in a case of homicide, shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, under Section 105 of the Evidence Act, the burden of proving the existence of circum.stances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. The accused has to rebut the presumption that circumstances did not exist, by placing material before the court sufficient to make it consider the existence of such circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a 'prudent man'. If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution 10 evidence, satisfi.es the test of 'prudent man' the accused will have to discharge his burden.

11. In Hari Singh Gond v. State of M.P., AIR 2009 the Hon'ble Supreme Court held that "the SC 31, standard to be applied for deciding applicability of S.84 is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an 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 week and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring Ets of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this Section. It was held on facts of case that S. 84 had no application.

12. Again in Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97, it was held by the Hon'ble Supreme Court the onus of proving 11 unsoundness of mind is on the accused. But where, during the investigation, previous history of insanity is revealed, is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. The burden of proof, however, is not so onerous as that upon the prosecution to prove that the accused com.mitted the act with which he is charged. The burden on the accused is not higher than that resting upon a plaintiff or a defendant in a civil proceeding."

13. In Sudhakaran v. State of Kerala, (2011) 1 SCC (Cri) 49, the Hon'ble Supreme Court observed as follows: ^^. 12 "29. Section 84 of the Penal Code, 1860 recognises the defence of insanity. It defined as under:

84. Act of d person of unsound mind.—Nothing is an offence which is done by a person who, at the tirae of doing it, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he is doin^ is either wrong or contraiy of law.

30. A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law.

35. It is also a settled proposition of law that the crucial point of time for ascertaining existence circumstances bringing within the purview of Section 84 is the time when the offence is comniitted. / i '^Ss JS 13 We may notice here the observations made by this Court in Ratan Lal v. In (1970) 3 SCC 533. State of M.P. para 2 of the aforesaid judgment, it is held as follows:(SCC p. 533) "It is now well settled that the crucial point of time at which unsoundness of raind should be established is the time when the crime is actually committed and the burden of proving this lies on the [appellant]."

14. Now, we have to see whether fhe appellant discharged the burden of proving that he was of unsound mind at the time or immediately after the offence.

15. In the instant case, no medical certificate has been produced by the appellant to prove unsoundness of his mind or his insanity. Even no single question is asked or to investigating officer Pranesh Dubey (PW-11) regarding unsoundness of mind of the appellant. Even the appellant has not taken defence during the trial that he was insane or having unsound mind at the time of the incident. When the appellant was examined under Section 313 Cr.P.C and was asked about his defence, he simply replied that he is innocent. 1 S r 14

16. Safed Kumar (PW-10) deposed that Lakshmi (deceased) was his daughter and she was studying in Class VI at Govt. Girls School, Basna. On the date of incident, she had gone to school for studying. Reeta (PW- 9) deposed that she was studying in Govt. Girls School, Basna along with Lakshmi (deceased) and Neeru. On

01.12.2006, after the school hours, they were returning to their houses. They stopped near village tank and washed their faces and hands. She further deposed that after washing the face and hands, she and Neeru came out of the tank and were standing on the bund of the tank and Lakshmi (deceased) was washing her face and hands. At that time, the appellant came there, caught Lakshmi, dragged and drowned her into the water. Having seen the incident, they shouted for help. Having heard their shout, the villagers gathered there.

17. Gop Bandhu (PW-1) and Rishabh Kumar (PW-3) deposed that having heard the shout, they reached near the tank. At that time, the appellant was putting his leg over the chest of the deceased under the water. Rohit w 15 entered ino the water and took the deceased out the tank and some villagers caught the appellant.

18. Reeta (PW-9) deposed that lodged Merg Intimation (Ex-P/9) and FIR (Ex-P/7) in Police Station, Basna. Dr. NK Naik (PW-5) deposed that he conducted postmortem examination on the dead body of deceased and gave his report (Ex-P/2), finding abrasion, 2cm x 0.1cm horizontal, middle of left clavicle on fhe chest (ii) abrasion, lcm x 0.1cm on the vertically oblique on the left side of the neck below thyroid cartilage (iii) abrasion, lcm x 0.1cm below injury No.2 (iv) abrasion, lcm x 0.1cm below injury No.3 (v) abrasion, 2cm x 0.1 cm on right side of the neck. He opined that cause of death was asphyxia due to drowning and mode of death was homicidal in nature.

19. The date and time of the incident was 01.12.2006 at about 17 hours and FIR (Ex-P/7) was lodged on the same day at 18.30 hours. The FIR (Ex-P/7) was lodged within 1 Ya hours of the incident. In the FIR (Ex-P/7), it is mentioned that: •.Vs 16 "^ tnrr ^TFST ^ 3^ ^Tf-im ^ war ^scft ^ll^dfly ^p^TT ?TT^TT eRT'TT ^ •cf,S\ 7 ^ ^ T^ft 1^1 ^l 3IT3T ^TTO 01/12/06 ^t ^cT ^T ^ft ^T ^ eTK ?TFRT 'ER •?[, ^^ afr; yTPft ^TT ^t ^l f^ TTT^ q?t dldl«l ^ ?tT ^Nf ^, aft? ^TSTgg ET^ tlldlsl ^ '^ ^TSig? ETR5? dldl'sl ^ qN 'g^T? '®^ TT^, ^l 3?Nr ^r 7r?r, TTOTI 'qT-ft cTpft grargg srr ^t afti ^er i?q? STK^T, dldlcl ^r STTtTT sft^ ?T?ift 'cpr ?PR 'ci?? 3iTpr '^t'-fr ?TST ^ Tcf^ 'cf^, cT?ift ?7r ffWi WvfW ^ V^\ 3R7 ^T 'STN-eTR 'ETe^t cpt TTT-ft 3T^' ^girT f^TT, cTSTT '5raT3]T, 3f^? ^[l^- -?5T, ^<5|cb<i ^q cf^H' ^cd'i, 'gV^ ^TTsJt Rlwlld T\W cTW 'Wt, ^m 'efT^ 'EI? ^S^, dldlEl gn?4l', dicHisi f^? STTWjr ^FTER, •?r ^Tt cRq? air^ ti eiK ^r '?r c|5f Tn^rr cisi'rl' ^l' ^< uTPT ^tT 'PN ST5TT tl Ri|'Hc|?| •Rqt^ ^^'rt ^| •^ war W[€ ^5^r ^p, CTS[T ^ RdluTl 3TP? 11 RTT^ ~^[ ^€t t, *l4c|l^l f^TT ^cf f

20. We have carefully perused the evidence of Reeta (PW-9), Gop Bandhu (PW-1) and Rishabh Kumar (PW-3). They have specifically deposed that on the fateful day, the appellant dragged the deceased into the tank and when villagers gathered there, they saw that appellant was putting his leg over the chest of the deceased and the deceased was lying under the water. Their evidence is corroborated by medical evidence. Therefore, evidence of Reeta (PW-9), Gop Bandhu (PW-1) "'"'S s-v ,,A //^'a '5^iS,^ 1 |^ '""•^SS'.ff' 17 and Rishabh Kumar (PW-3) is wholly reliable, cogent and can form the basis for conviction of fhe appellant. We have also perused the medical evidence. Dr. NK Naik (PW-5) opined that the cause of death of the deceased was due to asphyxia and the death was homicidal in nature.

21. In absence of medical treatment certificate/ documents with regard to unsoundness of mind of the appellant, mere oral submission cannot give rise to an inference that the appellant was of unsound mind at the time of commission of offence. There is no observation of the Sessions Court in this regard. Even in the statement of the appellant recorded under Section 313 Cr.P.C., nothmg has been observed nor the answers to the questions put to him are given in such a manner, on which, the Court could have proceeded in that line. In our opinion, the plea of the appellant does not come within the exceptions contemplated under Section 84 IPC.

22. Therefore, we do not find any infirmity in the finding recorded by the learned Sessions Judge that it ..-*'' .--^ 18 was the appellant who dragged the deceased into the water and the deceased died due to drowning.

23. For the foregoing reasons, we do not End any substance in the appeal, which deserves to be and is '<u- hereby dismissed. i^;.iSd/-"[^ Satish K. Agnihotri Judge Biiu Sd/- R.S. Sharma Judge