^ HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRIR.LJHANWAR. JJ. Criminal Appeal No. 786 of 2002 APPELLANT/ (in iain RESPONDENT Ramdhan Manjhi, S/o Shri Ratan Sai, aged about 45 years, R/o Village Madanpur (Injko), P.S. Patthalgaon, Distt. Jashpur Nagar (C.G.) VERSUS State of Chhattisgarh, Through P.8.- Patthalgaon, Distt. Jashpur Nagar CRIMINAL APPEAL UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE Appearance: Mr. Dhirendra Mihsra, counsel for the appellant. Shri Arun Sao, G.A. for the State. ORAL JUDGMENT (Passedon 15.12.2010) Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28.05.2002 passed in Sessions Case No. 232/2002 by the 2nd Additional Sessions Judge (F.T.C.), Jashpur Nagar whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of his relative Basanti Bai and caused simple injury to Samrath and damages to catlle, the Court below convicted the appellant under Section 302, 429 and 323 ofthe I.P.C. and sentenced to life imprisonment with fine of Rs.5,000/- and in default to undergo further simple imprisonment of 5 years under Section 302 ofthe I.P.C. and to undergo imprisonment of one year and six months respectively under Sections 429 and 323 of the I.P.C. 2. The conviction of the appellant is impugned on the ground that without iota 6f evidence especially motive for commission of offence, the Court below convicted and sentenced the appellant as aforesaid and thereby committedillegality. 3. As per the case of prosecution, on fateful day of 31.07.2001 at about 1.00 p.m. the appellant holding axe firstly assaulted she-calf, seeing this, Basanti Bai, wife of elder brother of father of the appellant caught hold of she-calf and started weeping, then appellant also assaulted her. The appellant also assaulted Samarath P.W.2 and caused simple injury to him. P.W.1 Rewati Raman went to police station and lodged report vide Ex.P.1. On account of assault by the appellant, Basanti Bai received fatal injuries and thereafter died. P.W.1 Rewati Raman recorded merg intimation vide Ex.P.2. Investigating Officer left for scene of occurrence and after summoning the witnesses, inquest over the dead body of Basanti Bai was prepared vide Ex.P.7. Injured Samarath P.W.2 was examined by Dr. Smt. Anija Minj P.W.10 vide Ex.P.14 and after examination.she.found one lacerated wound over vertex region of scalp of 5 cm. x 14 cm. x 14 cm. reddish in colour. Dead body of Basanti Bai was sent to Community Health Center, Patthalgaon where Dr. P. Sudhar P.W.12 conducted autopsy and found (1) lacerated wound of 5 cm. x 2 cm x 1 cm. was present in front of right forehead. Brain tissue was protruding from the wound, (2) a depressed fracture of lateral occipital region and (3) lacerated wound of 3 cmx1/^ cm was found and brain matter was coming out. Mode of death was coma and death was homicidal in nature. Spot map was prepared vide Ex.P.3. Patwari prepared spot map vide Ex.P.4. Axe was recovered from Samarath vide Ex.P.5. Sealed cloths of the deceased was seized vide Ex. P.6. •I 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before the Court ofChief Judicial Magistrate, Jashpur who in turn committed the case to'the Court of Sessions Judge. The learned Additional Sessions Judge received the case ontransferfor its trial. ' 5. In order to prove the guilt of the appellant, the prosecution examined as well as 12 witnesses. The accused was examined under Section 313 of the Code where he denied the circumstances appearing "4T -^ - against Nm and innocence and false implication in crime in question was pleaded. By adducing defence witnesses Paitram D.W.1, Chamar Sai D.W.2, Baliram D.W.3, Sumitra Bai D.W.4 and Prem Prakash Bhagat D.W.5, appellant has taken defence that he was insane and did not know good and bad or right or wrong after commission of such offence and consequence thereof. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Shri Dhirendra Mishra, learned counsel for the appellant and Shri Arun Sao, learned counsel for the State heard. Perused the record of the Court below including impugnedorder. ; 8. Shri Dhirendra Mishra, learned counsel for the appellant vehemently argued that in the present case, in the light of evidence P.W.1 Rewti Raman, P.W.2 injured witness Samarath, P.W.6 Jagannath and P.W.7 Lalluram, he is not disputing the fact that the appellant has caused injury to Basanti Bai and Samarath and has also caused damage tp cattle. Counsel fuFther argued that the appellant has taken defence of exception that the appellant was insane and at the time of commission of offence, he was not aware about the good and bad or right or wrong act done!by him, therefore, the prosecution was under obligation prove the fact that the appellant has intentionally committed the offence inter alia he was not insane at the time of commission of offence. The prosecution has not proved the aforesaid essential ingredients. Further, he argued that even otherwise the evidence of prosecution witnesses revealed that firstly he caused damage to cattle and she-calf, thereafter to Basanti Bai and then Samarath without any reason which shows that at least the appellant was disturbed state of mind and was mentally ill and caused such injury, which shows the act of the appellant was without any motive. If the act of the appellant is considered as gospel truth, then the act ofthe appellant does not travel beyond thescope of Section 304 Part 1 ofthe I.P.C. 9. On the Other hand, Shri Arun Sao, learned counsel for the State opposed the appeal and argued that present appellant has caused repeated fatal injuries to Basanti Bai and Samarath and also caused ^^fe^ '^sa% '"%; ' ^ .-^' .••^ •: x - ^' damaged cattle and as a result of injuries Basanti Bai died,which shows the intention of the appellant to cause her death and cause injury to Samarath. 10. In order to appreciate the arguments advanced by the parties, we have examinedthe evidence adduced by the prosecution. In the present case, homicidal death of Basanti Bai, as a result of fatal injuries, has not been substantially disputed on behalf ofthe appellant, but also established by the evidence of P.W.12 Dr. P. Sudhar and autopsy report Ex.P.16 and the death was homicidal in nature and the simple injury caused to Samarath has not been substantially disputed on behalf of the appellant but has also been proved by the evidence of Dr. (Smt.) Anita Minj P.W.10 and medical report Ex.P.14. As per evidence of P.W.1 Rewti Raman, P.W.2 injured witness Samarath, P.W.6 Jagannath and P.W.7 Lalluram, the appellant has also caused damageto cattle and she-calf and then caused injury to Basanti Bai and Samarath repeatedly. 11. As regards thecomplicity of the appellant in crime in question, although the appellant has not substantially disputed the'fact that the appellant has caused injury to Basanti Bai, Samarath and she-calf, even otherwise established by the evidence of P.W.1 Rewti Raman;P.W.2 injured witness Samarath, P.W.6 Jagannath and P.W.7 Lalluram who has deposed that present appellant has caused injury to Basanti Bai, Samarath and also to she-calf. As regards the motive is concemed, the appellanl has laKen specific' defence that sit the time of cbmmission of offence, he was insane. The appellant has examined D.W.1 Paitram, D.W.2 Chamar Sai, D.W.3 Baliram, D.W.4 Sumitra Bai and D.W.5 Prem Prakash Bhagat. D.W.5 Prem Prakash Bhagat has deposed that the appellant was in police station as directed by Station House Officer, he produced the appellant before the Dr. P. Sudhar P.W.12 who has examined the appellant vide Ex. D.2 which reveals that at time of commission of offence the appellant was disturbed and considering his previous psychiatric history, he was required for further treatment in mental hospital. As per evidence of D.W.1 Paitram, D.W.2 Chamar Sai, D.W.3 Baliram, D.W.4 Sumitra Bai, the appellant was insane and previously he was medically treated but the reason best known to the appellant or his Doctor P.W.12 Dr. P. Sudhar, no document relating to his ^^' ^^ •^^ //"•i'c\ msm :%. ' ..^' -> medical treatment has beenfjled on behalf of the appellant. Surprisingly, even they have not taken defence that mental treatment of the accused is over and they have not asked anything to prosecution witnesses relating to state of mind of the appellant by their examination of the appellant. They have filed repeated applications for examination of the appellant which were dismissed by the trial Court. 12. The conduct of appellant reflected from the record of the trialCourt especially from the order sheets of the trial Court over sickness of the appellant and answers given by the appellant before the Court under Section 313 of the Code exclude the possibility of insanity especially at the time of commission of offence. Ex.D.2 does not disclose the fact that after examination of the appellant, Doctor has opined that the appellant was insane at the time of examination. The defence of exception of insanity is required to be proved by the defence, in accordance with Section 105 of the Evidence Act and prosecution is not under obligation to prbve the factum of insanity. Record of trial Court and conduct of appellant till his examination show that till the examination of accused conduct and appearance of the appellant was not like insane or mentally disturbed. Definitely, in the present case, the appellant firstly has caused damage to cattle by causing injury to she-calf, thereafter caused injury to Basanti Bai over her head and then he has caused one injury to Samarath. There was no premeditation causing suchinjuries. There was no enmity between them and there was no cause for causing such injury. Although both the parties did not lead any evidence or adduce any material relating to initial cause for making assault to cattle but it appears that she-calf might have been grazing the crop or at the time of incident the behaviour of she-calf that has prompted the appellant to assault the she-calf and thereafter when deceased Basanti Bai resisted by caught holding the cattle and started weeping then the appellant has caused such injury which shows that he has not caused any injury to Basanti Bai with intent to cause her homicidal death. At the time of conviction of the appellant under Section 302, the trial Court was under obligation to consider the factum of motive but the trial Court has not considered the fact of motive in its right perspective and thereby committed illegality. w^ 13. Considering the fact that while causing such injury to Basanti Bai over her head, the appellant was definitely insane and he did not know that by this act the deceased may die. We are of the view that act of the appellant squarely falls within the ambits ofSection 304 Partl ofthe I.P.C. and not under Section 302 ofthe I.P.C. along with Section 323 and 429 of the I.P.C. 14. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 323 and 429 of the I.P.C. and sentence thereof are maintained. However, conviction of the appellant under Section 302 I.P.C. and the sentence awarded thereunder are altered to Section 304 Part 1 ofthe I.P.C. andconsidering the repeated fatal injuries, we sentence theappellant to R.l. for 10 years. He is in custody since 31.07.2001 and he is entitled for the set off period. The appellant shall be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge