IN THE HIGH COURT OF MADHYA PRADESH : AT JABALPUR Criminal Appeal No.364/2003 [ENTITY] Son of [ENTITY] Kol, aged about 30 years, R/o Bada Teekath, P.S. Churhat District-[ENTITY](M.P.) Appellant -V/S- [ENTITY] Respondent Present:- Honble Shri [ENTITY], Chief Justice Hon'ble Shri Justice [ENTITY] Shri [ENTITY], Counsel for the appellant. [ENTITY], Panel Lawyer for the State. JUDGMENT
(Delivered on this 22nd day of May, 2017) Per: [ENTITY], J.
1. This Criminal Appeal under [SECTION] of the [ACT] is directed against the judgment dated 10.07.2002 passed by the Court of Sessions Judge, [ENTITY] in Sessions Trial No.5/2001 ([ENTITY] through P.S. Churhat versus [ENTITY] Kol); whereby appellant was convicted of the offence punishable under [SECTION] of the [ACT] and was sentenced to undergo rigorous imprisonment for life and fine in the sum of Rs.100/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of three months.
2. The prosecution case before the trial Court may be summarized as hereunder: Appellant [ENTITY] is son of deceased [ENTITY]. [ENTITY] (PW-1) is another son of deceased [ENTITY]. [ENTITY] (PW-2) is son of [ENTITY] and was about 13 years old on the date of the offence. At about 11:00 a.m. on 17.10.2000, [ENTITY] (PW-2) was sitting in the front room of their house along with his grandfather deceased [ENTITY]. At that time, appellant [ENTITY] was standing outside their house armed with a stick. He was filthily abusing [ENTITY] and his family members and was shouting. [ENTITY] asked him not to hurl abuses but appellant [ENTITY] did not listen to him; whereon, deceased [ENTITY] came out of house to pacify the appellant; however, the appellant struck a blow with stick upon his head and delivered another blow to his waist. As a result, deceased [ENTITY] fell down and started to bleed from the wound in the head. Apart from [ENTITY], [ENTITY] (PW-14) who was washing his four wheeler in a water-body situated nearby, was present on the spot,. [ENTITY] chased the appellant but he escaped from the spot throwing the stick. On that date, [ENTITY] (PW-1) had gone to Bargawan. [ENTITY], daughter of deceased [ENTITY], went to Bargawan and informed him about the incident. Upon hearing the news, he rushed home. Deceased [ENTITY] was taken in a jeep to Churhat. From Churhat, he was referred to District Hospital, [ENTITY]; however, he succumbed to his injuries on his way to [ENTITY]. The first information report was lodged by [ENTITY] at about 05:50 p.m. the same day in P.S. Kotwali [ENTITY]. After due investigation, the charge sheet was filed.
3. A charge under [SECTION] of the [ACT] was framed against appellant [ENTITY]. He abjured the guilt and claimed to be tried. In his examination under [SECTION] of the [ACT], he took the defence that he was mentally challenged. [ENTITY] (PW-1), elder brother of appellant [ENTITY] wanted to usurp the share of deceased [ENTITY] and appellant [ENTITY] in the ancestral land but [ENTITY] used to resist [ENTITY]; therefore, [ENTITY] killed the deceased by delivering blows with the stick. Thereafter, he conspired with [ENTITY] to falsely implicate the appellant in the case after the death of [ENTITY], taking advantage of unsoundness of his mind.
4. After the trial, the trial Court concluded that the prosecution had succeeded in proving beyond reasonable doubt that:
(i) the appellant had intentionally dealt a blow with stick upon the head of the deceased;
(ii) the injury caused by the blow was sufficient in the ordinary course of nature to cause death;
(iii) therefore, the act of the appellant would fall within the ambit of Thirdly of [SECTION] of the [ACT], defining murder.
(iv) consequently, the appellant was convicted and sentenced as stated above.
5. Learned counsel for the appellant has challenged the conviction and sentence recorded by the trial Court on the grounds that though there are two eyewitnesses to the incident, there are several material contradictions and omissions between their statements under [SECTION] of the [ACT] and the statements before the Court on one hand and between their statements inter se made before the Court. The trial Court has grievously erred in glossing over aforesaid discrepancies. It has further been submitted that the trial Court ought to have upheld the plea of insanity. However, it brushed aside the same on insufficient grounds.
6. Learned panel lawyer for the respondent/State on the other hand has supported the impugned judgment.
7. On perusal of the record and due consideration of rival contentions, this Court is of the view that this appeal must succeed but only in part. The conviction of the appellant under [SECTION] of the [ACT] is liable to be converted into one under [SECTION] of the [ACT] and his sentence of imprisonment for life is liable to be reduced to one of rigorous imprisonment for a period of 10 years, for the reasons hereinafter stated:
8. [ENTITY] (PW-2), son of [ENTITY] (PW-1), grandson of deceased [ENTITY] and nephew of appellant [ENTITY] has stated that at around 11:00 a.m. during winters, deceased [ENTITY] was breaking gravel. At that time, appellant [ENTITY] started to filthily abuse his grandfather. His grandfather asked [ENTITY] not to abuse him; whereon, [ENTITY] delivered a blow with a stick to deceased [ENTITY]. The stick landed on [ENTITY]'s forehead. Thereafter, [ENTITY] also delivered a blow with stick to [ENTITY]'s left hand.
[ENTITY] (PW-14) snatched the stick (Article-A) from the appellant and threw it away. [ENTITY] raised an alarm that his grandfather is being killed; whereon, [ENTITY], [ENTITY], [ENTITY] and a driver, who was washing the vehicle rushed to the spot. At that time, his grandfather was alive and was speaking a little bit.
9. [ENTITY] (PW-14) has stated that about 7-8 months before the date of his statement in the Court, at around 12:00-01:00 p.m., he was washing his Sumo vehicle in the water- body situated outside appellant [ENTITY]'s house. At that time, quarrel was taking place. Appellant [ENTITY] and his father deceased [ENTITY] came out with [ENTITY]'s two young children. At that time, appellant [ENTITY] was carrying a thick stick. [ENTITY]'s father [ENTITY] was telling something to [ENTITY]. During talks between them, appellant [ENTITY] delivered a blow with stick to [ENTITY]'s head. He ran towards the spot. [ENTITY] delivered another blow to [ENTITY]. No sooner he reached the spot, [ENTITY] ran away and hid in the hills. Thereafter, he asked [ENTITY]'s son to bring a cloth and tied it to [ENTITY]'s head so that the bleeding could be stopped. On hearing commotion, 3-4 other persons came to the spot. [ENTITY]'s daughter also came out. She told [ENTITY] that [ENTITY] had gone to village Lakoda. Thereafter, she went to Lakoda to call [ENTITY]. In the cross-examination, he has stated that all he knows about the stick is that appellant [ENTITY] was armed with a stick; however, he does not know as to what happened to the stick, after the incident.
10. [ENTITY] (PW-1) has stated that at the time of the incident he was at Bargawan. His sister [ENTITY] had come to Bargawan at about 02:00 p.m. on the date of the incident and had told him that his brother [ENTITY] had killed his father [ENTITY]. Upon hearing about the incident, he had rushed to his village Thikath. At that time, his father was alive but he had sustained an injury on the back of his head. He also had an injury to his left hand. There were many persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] present on the spot. A jeep was ready to take deceased to the hospital. After that he went along with others to Churhat. Dr. [ENTITY] referred deceased [ENTITY] to [ENTITY]. So, he took deceased [ENTITY] to [ENTITY] but in [ENTITY] hospital his father was declared brought dead. [ENTITY] (PW-1) has further stated that he lodged first information report (Ex.P/4) in P.S. Kotwali [ENTITY], the same evening. He was told that appellant [ENTITY] had ran away from the spot throwing the stick with which he had assaulted [ENTITY]. He had picked that stick and given it to the police.
11. It is true that there are certain discrepancies between statements of [ENTITY] (PW-2) before the Court and his statement under [SECTION] of the [ACT] (Ex.D/1). In Ex.D/1, he has stated that before the incident he was sitting along with his grandfather [ENTITY] in the front room of his house; whereas in his statement before the trial Court he has narrated that at that time, his grandfather [ENTITY] was breaking gravel. Likewise, he has stated in Ex.D/1 that the stick used by appellant [ENTITY] as weapon of offence was thrown away by him while he was running away from the spot. [ENTITY] had picked that stick and had kept it in his house; whereas, in his statement before the Court he has disclosed that [ENTITY] had not thrown the stick but [ENTITY] had snatched it from the appellant.
12. [ENTITY] (PW-14) on the other hand has stated before the Court that he is not aware as to what happened to the stick with which the appellant had assaulted the deceased. It may be noted here that none of the aforesaid discrepancies goes to the root of the matter. Core of the prosecution story is unscathed by these contradictions. The sum and substance of the prosecution case that appellant was filthily abusing the deceased, the deceased asked him not to hurl abuses; whereon, the appellant dealt lathi blows to the deceased, has remained intact. As such, aforesaid discrepancies cannot be termed as material.
13. The appellant has taken the defence that his brother [ENTITY] wanted to grab the share of appellant [ENTITY] and deceased [ENTITY] in the ancestral property; therefore, he had killed the deceased and conspired with his son [ENTITY] and [ENTITY] to falsely implicate the appellant. None of the prosecution witnesses, to whom aforesaid defence was suggested, has accepted it. Moreover, the appellant himself was not serious in taking that defence because to some witnesses a suggestion was given that it was not [ENTITY] but [ENTITY] (PW-14) who had killed [ENTITY]. It was suggested that in fact [ENTITY] had wanted [ENTITY] to work in his field. When [ENTITY] declined, [ENTITY] had dealt lathi blows to [ENTITY], causing his death. In any case, mere suggestions do not help the cause of the appellant. The appellant has adduced no evidence in his defence to support any of the aforesaid two theories. On the contrary, statements of prosecution witnesses revealed that though [ENTITY] was present on the spot, [ENTITY] had gone to Bargawan from where he had to be called. He arrived on the spot about two hours later.
14. Moreover, the deposition of witnesses [ENTITY] and [ENTITY] is supported by medical evidence. PW-10 Dr.[ENTITY] has stated that at about 10:00 p.m. on 18.10.2000 i.e. the day next to the date of the incident, he had conducted post-mortem examination upon the dead body of deceased [ENTITY] and had discovered following facts:
(i) Rigor mortis had set in the entire body. There was a lacerated wound on the left side of the head admeasuring 4 x 3c.m. x bone deep. Blood had coagulated in the entire skull.
(ii) one large swollen wound on the right side of occipital region.
(iii) one large swollen wound on left side of parietal region in the skull.
(iv) one deep swollen wound on lower part of left arm. This injury had turned blue-black. During internal examination, he found that:
(i) on the internal surface of the head, the blood clots in parieto-occipital and left temporal region were present.
(ii) there was a fracture in the parieto-occipital and left parieto-temporal region. Brain matter had ruptured under the fracture.
(iii) left radius and ulna bones were broken.
15. In aforesaid circumstances, it is clear that the appellant had delivered at least three blows with a stick to the head of the deceased and the deceased had died as a result of coma induced by head injury. Aforesaid three injuries on the head, were jointly and severally sufficient in the ordinary course of nature to cause death. A suggestion has been given in the cross-examination to Dr. [ENTITY] that aforesaid injuries to head could have been caused if a person fell upon a stone, upside down. However, there is no evidence available on record to suggest that the deceased had in fact fallen in such a state on the stone on the date of the incident. Therefore, aforesaid admissions made by Dr. [ENTITY] is inconsequential. Thus, it is clear that the statement of prosecution witnesses [ENTITY] (PW-2) and [ENTITY] (PW-14) is corroborated by medical evidence as well.
16. On the basis of aforesaid evidence, in the opinion of this Court, the prosecution has been able to prove beyond reasonable doubt that the appellant had delivered blows with a stick to the head and left hand of the deceased. The injuries caused to the head were sufficient in the ordinary course of nature to cause death. Thus, the trial Court was justified in concluding that the appellant had intentionally caused such injuries to the head of the deceased, as were sufficient in the ordinary course of nature to cause death. Therefore, his act would fall under the ambit of [SECTION] of the [ACT]. In this regard, judgment rendered by a five judge bench of Supreme Court in the case of [PRECEDENT] may be relied upon.
17. The main argument of learned counsel for the appellant [ENTITY] revolves around the fact that the assault was not premeditated. Even as per the prosecution story, the appellant was standing in front of the house of the deceased and was filthily abusing him. [ENTITY] (PW-14) has stated that in his examination-in-chief itself that a quarrel was taking place between the appellant on one hand and the deceased on the other. Deceased [ENTITY] was saying something to appellant [ENTITY]. During the course of arguments, appellant [ENTITY] struck a blow with a stick on the head of the deceased. The appellant had no particular motive for commission of the murder. As such, his act of causing injury does not seem to have been premeditated. There is no reason to believe that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus, it seems that the offence was committed without premeditation, in a sudden fight, in the heat of passion and upon a sudden quarrel. Hence, the act of the appellant would fall under the purview of Exception No.4 appended to [SECTION] of the [ACT] defining murder. In these circumstances, the offence would come under [SECTION] of the [ACT] and not under [SECTION] of the [ACT].
18. The last argument that has been advanced on behalf of the appellant is that at the time of the offence, the appellant was of unsoundness of mind. Inviting attention of the Court to [SECTION] of the [ACT], it has been argued that the act of the appellant was not an offence because at the time of doing it, by reason of unsoundness of mind, the appellant was incapable of knowing the nature of the act, or that what he was doing was either wrong or contrary to law. This aspect of the matter has been dealt with by the trial Court in paragraph no.35 of its judgment. It is true that [ENTITY] (PW-1), the brother of the appellant, has admitted in his cross- examination that the appellant had been mentally ill about 4 years next preceding the date of the offence. He used to beat the people. About 2 years later, he started roaming about with a stick and would beat up people for no reason. About 6 months before the date of the incident, the appellant had caught hold of him. He used to filthily abuse people. The aforesaid witness has further stated that the appellant was taking treatment from Dr. [ENTITY] at Rewa. They had also got him exorcised by [ENTITY] but he did not improve. He was also treated in Medical College, Rewa. The prescriptions of the doctors and cash memos of the medicine were with the accused which he had lost. The witness has further stated that when the appellant had caught hold of him, he had gone to P.S. Churhat to lodge report but the Head Constable present at the police station had told him that they do not detain insane persons. The witness has also stated that the appellant had killed his father under the influence of mental illness.
19. In similar manner, [ENTITY] (PW-2), nephew of the appellant has also admitted in his cross- examination that the appellant was insane. His children had already left him and had gone to their mother's maternal home because the appellant used to beat them. The appellant used to eat whatever would come his way and if he did not get anything, he would abuse people. About two months prior to the date of the incident, the appellant had beaten up [ENTITY]. He used to beat up people at his home also. Therefore, the people used to run away from him. He used to do nothing. Once he had run behind [ENTITY]'s father to beat him. His father had gone to lodge a report in the police station but the policemen did not arrest the appellant.
20. From aforesaid admissions of prosecution witnesses [ENTITY] and [ENTITY], it appears that the appellant was somewhat mentally challenged. However, it is not every kind of mental infirmity that clothes a person with immunity. It trite law that the plea of unsoundness of mind needs to be specifically taken and proved. It is to be proved that at the time of the incident the offender was suffering mental illness of such a nature that he was incapable of knowing the nature of his act or that he was in capable of appreciating that what he was doing was either wrong or contrary to the law. In the case of [PRECEDENT], the Supreme Court has held that the law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the offence. The mere fact that no motive was proved as to why the accused had murdered his wife and child nor the fact that he made no attempt to run away when the door was broken open, could not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.
21. In the instant case, the appellant was filthily abusing the deceased. There was a quarrel between them and following aforesaid quarrel, the appellant assaulted the deceased with a stick causing his death. After commission of the crime, the appellant ran away and had hidden in the hills. His act of running away from the spot after the incident, reveals guilty state of mind. It indicates that he was well aware that whatever he had done was wrong and he will have to face the legal consequences thereof; therefore, he had tried to evade capture by the witnesses and had hidden himself to avoid detection. Thus, there is no reason to believe that at the time of the incident he was unable to comprehend the nature of his act or was unable to appreciate the fact that whatever he had done to his father was wrong or was contrary to law. Thus, the trial Court has rightly held that the act of the appellant does not come under the ambit of [SECTION] of the [ACT].
22. On the basis of foregoing discussion, this appeal succeeds in part. The conviction of appellant [ENTITY] is converted from one under [SECTION] of the [ACT] to one under [SECTION] of the [ACT]. Consequently, the sentence of life imprisonment imposed upon the appellant is converted to one of rigorous imprisonment for a period of 10 years and the fine is enhanced from Rs.100/- to Rs. 1000/- (Rupees: One thousand). In default of payment of fine, the appellant shall undergo rigorous imprisonment for a further period of 6 months.
23. The appellant shall be released forthwith if he has already undergone the period of imprisonment imposed upon him and is not required in connection with any other case.
([ENTITY]) (C [ENTITY]) CHIEF JUSTICE JUDGE b