HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (InJail) RESPONDENT: Criminal Appeal No.622 of 2006 Dauram, S/o Faguram Gond, aged about 46 years, Occupation Agriculture, R/o Kawachi Katel, Police Station Durgkondal, District Kanker (C.G.) Versus State of Chhattisgarh, Through Police Station Durgkondal, District Kanker (C.G.) {Criminal appeal under Section 374 (2) of the Code^of Criminal Procedure, 1973} Present: Mr. P.K.C. Tiwari, Senior Advocate with Mr. Shashi Bhushan, Advocate for the appellant. Mr. Sanjeev KumarAgrawal, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'bSe Mr. N.K. Aaarwal. JJ ORAL JUDGMENT (8-3-2011) T^P. Sharma,J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31-7-2006 passed by the Additional Sessions Judge (FTC), Kanker in Sessions Trial No.370/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Jangluram, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life. 2, Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 14-7-2002 at about 5 p.m. the unfortunate deceased Jangluram was sitting in the verandah of Sukluram (PW-4) where appellant Dauram was residing, Dauram came with axe and assaulted on the neck of Jangluram resulting his instantaneous death. Immediately, Sukluram (PW-4) caught hold of the appellant and snatehed his axe, thereafter, he confined the accused/ ^ a /•' appellant and directed his wife to inform other villagers. After arranging vehicle jeep Sukluram (PW-4) along with other persons, dead body of Jangluram & bloodstained axe went to the police station and lodged FIR vide Ex.P-10. Axe was seized vide Ex.P-1. Bloodstained and plain soil were seized vide Ex.P-2. After summoning the witnesses vide Ex.P-3 inquest over the dead body of Jangluram was prepared vide Ex.P-4. Spot map was prepared vide Ex.P-5. Dead body was sent for autopsy to Community Health Centre, Durgkondal vide Ex.P-12. Dr. D.S. Thakur (PW-7) conducted autopsy vide Ex.P-13 and found one incised wound of 10 c.m. x 3 c.m. x 1 c.m. over neck. Mode 6f death was syncope and death was homicidal in nature. On 15-7-2002, the accused was arrested vide Ex.P-6 and was sent to the doctor for examination relating to his insanity vide Ex.P-14. On 16-7-2002, he was examined by Dr. R.K. Chandravanshi (PW-8) vi'de Ex.P-15 who opined that the appellant was patient of paranoid schizophrenia. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bhanupratappur who committed the case to the Court of Sessions, Jagdalpur, from where learned Additional Sessions Judge received the case on transferfortrial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as seventeen witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned Senior Advocate appearing on behalf of the appellant vehemently argues that conviction of the appellant is substantially based on evidence of the alleged solitary eye witness Sukluram (PW-4), but his evidence does not inspire confidence and is not trustworthy, his evidence is not of sterling quality sufficient for conviction of the appellant without any further corroboration from independent sources. Learned Senior ~a i Advocate submits that as per case of the prosecution itself, the accused was suffering from paranoid schizophrenia, he was insane and was unable to understand good or bad, right or wrong, and the consequence of his act, therefore, his act falls within the exception of Section 84 of the IPC. Learned Senior Advocate further submits that on the basis of evidence of the witnesses of the village, on the date of arrest the accused was sent for examination relating to his insanity vide Exs.P-17 & P-14 and he was examined by Dr. R.K. Chandravanshi (PW-8) vide Ex.P-15 which clearly reveals that he was unable to understand right or wrong, good or bad and the consequence bf his act. Therefore, even otherwise, his act falls within the exception of Section 84 of the IPC. 9. Learned Senior Advocate placed reliance in the matters of Jagdish Prasad and others v. State of M.P. (AIR 1994 SC 1251) and Bipin Kumar hflondal v. State of West Bengal (2010 AIR SCW 4470) in which the Supreme Court has held that in case of partially reliable witness, corroboration from independent sources is necessary. 10.0n the other hand, learned State counsel opposes the appeal and submits that the prosecution has proved its case beyond all reasonable doubts and the trial Court has rightly convicted & sentenced the appellant. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidencQ adduced on behalf ofthe prosecution. 12.1n the present case, homicidal death of deceased Jangluram as a result of fatal injury found over vital part of his body has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. D.S. Thakur (PW-7) and autopsy report Ex.P-13 that death ofdeceased Jangluram was homicidal in nature. 13.As regards complicity ofthe appellant in the crime in question, conviction is substantially based on evidence of Sukluram (PW-4), the alleged solitary eye witness. As per his evidence, he along with deceased Jangluram was sitting in his verandah, the appellant was also residing in his house, the appellant came with axe and assaulted Jangluram by axe over his neck and caused his instantaneous death. After causing such injury, the appellant tried to flee from the spot, he caught of the appellant and snatched the axe, thereafter, he directed his wife to inform the villagers. After confining the appellant, he.went to the police station where he was directed by the police officer to bring dead body of the deceased, blood stained axe, blood stained & plain soil from the spot, and then on second day after arranging vehicle, he along with other persons took dead body of the deceased, bloodstained axe and bloodstained & plain soil from the spot, and lodged FIR vide Ex.P-10. In para 11 of his cross-examination he has admitted that the appellant was not mentally sound. In para 13 of his cross-examination he has further admitted that when the deceased, who was sitting, fell down, he saw injury over neck of the deceased and bleeding from the injury. Although he has stated that the appellant has caused such injury, in para 17 of his cross-examination he has specifically deposed that after staining the axe with blood of the deceased, they produced the same before the police station which has been seized. 14.1n the light of paras 3, 13, 15 & 17 of evidence of Sukluram (PW-4), especially relating to the fact that after the incident he went to the police station and informed the police but the police has not recorded FIR and the police has recorded FIR on second day and the fact that after staining the axe with blood of the deceased they produced the axe, this witness cannot be treated as wholly reliable witness and his evidence requires corroboration from other material sources. 15.As held by the Supreme Court in Jagdish's case (supra) & Bipin's case (supra), evidence of Sukluram (PW-4) has not been corroborated by any other witness or from any source. 16.As per para 6 of evidence of Mangluram (PW-3) and para 11 of evidence of Sukluram (PW-4), the appellant is insane i.e. mad. Even vide memorandums Exs.P-14 & P-17 - requisitions, the prosecution itself has sent the appellant for examination relating to his insanity. The appellant was examined by Dr. R.K. Chandravanshi (PW-8) vide Ex.P-15 on 16-7- 2002 within two days of the incident. As per para 4 of evidence of Dr. R.K. Chandravanshi (PW-8), at the time of examination ofthe appellant, the appellant was not talking, he was not answering the questions put to him, he was not responding even after touching his body, his higher function was not normal and he was patient of paranoid schizophrenia. As per para 3' of evidence of Dr. R.K. Chahdravanshi (PW-8), the appellant was treated during the course of his custody and on 31-5-2005, ^ ^ A •2^ ^) )) Soma as per evidence of this witness, mental status of the appellant was normal. 17.Material collected on behalfofthe prosecution and evidence adduced on behalfofthe prosecution, especiatly evidence of Dr. R.K. Chandravanshi (PW-8) and his report Ex.P-15, are sufficient to establish the fact that the appellant was man of unsound mind and by reason of unsoundness of mind, he was incapable of knowing the nature of his act or that whether he is doing wrong or contrary to law. 18.1n these circumstances, even if it is established that the appellant has caused injury to the deceased, act of the appellant would squarely fall within the ambit of Section 84 of the IPC as exception and the appellant is not liable for commission of any offence punishable under Section 302 ofthelPC. 19.While convicting the appellant under Section 302 of the IPC for culpable homicide amounting to murder of Jangluram, the trial Court has not considered the evidence adduced on behalf of the prosecution and the material collected on behalf of the prosecution relating to unsoundness of mind ofthe appellant, and thereby committed illegality. 20.Consequently, the appeal deserves to be allowed and it is hereby allowed. Conviction & sentences imposed upon the appellant under Section 302 of the IPC are hereby set aside and the appeliant is acquitted of the said charge. The appellant be set at liberty forthwith, if not reqLjired in any other case. __. _____ -SdTU~ ! .... sd/- T-RSharma i N.ICAgrawal Judge i Judge -Jl ^ 4r r3 IJ