E(KU)C. J; P, R./1-9I IF0000057658 r—^^r;^^'^ i^^Bg'iBI^^' 102 ^'^-^^IL: ^^.<..^^ R's name nra?-rq frrg', t^griti- yrv- a-Tn^Tqr,1 qr-ir-. ^ rtt- |ence___fajiiT.. fs^rg^r Sirpgrit i.Aae , , \ ; 26 fcced to Sfr'fr'N ^r?T^r?T "-(,0 •7/9/1994^' k SeGtion_ 302 »W.2. fa. . by^srS@a_5S-3a3E^"3LlaE®£-X-?=!TrqT(iIlj'i ^ _qg4_a'f1aQ •==!TT^iT^T,"ftt.rT'?g:ir wofo s ^ ?R .gTa??Ty $0 472/92 is •explained tot thei pri?oner!that ifhe states he wiilies lo^e repl'eseited by a legal igtioaer the appsllate Court will not p'-.);;;d with the ca'e t.i; o/si d<.ys ut'e^ ih-i Ipractitioner appears eariier,Jfthe legal practitioner does ffot appear within seven le may not heard at all. ifthe prisone' states that he does not wish to bs repre- |jl by legal practitioner the^-court may proceed-a;-once-wttSi1 tUe cas6' acd will not Uiged to give a hearing to any legal practitioner who should appear. •48 . ('•-'•••• •~f~. ; ;/? fbate'of Application for 'c^py of Judgement if; - i'. .,-\; • 'l,. r^ ^ Date on-'which cofv received ^ Date, on whieh iAppe'al sent_J_ -).-.,. ./• Whether itie pinsoaer wishe's to be represented or not. J<X- _4/9/l994 /9/1994 o 02 Mame TT'^m sro dra^raj^ i-v:'- ^.^. •q ^ '• ,JaiT__i@gT^@agjijL '<•. i. 1 ^ /fflf!{/ 9,4 994 arded to the JTiMr®L^9SVgtSV Kt^Fffc^J^^rqrPtq' iiffqg^d^gggg'r Iflocg /1 '. •-, • '. •_• "! ...' ..': " 1 ".-' •' r .... r • if v : • • -r'r; j ^ i _ : • >!- r, r i . - • ' —' ••: • '"'.-- |ethei" with a copy of ju^gemeat •'or-order pai|Sed iiji imission to the proper ApFcllatc court. -Ti^T,:" fl^ g'^iT.^TO ^t?2/9'2 ' ^y-f^lfh,! \'i--i, -i-1, 1 i ^ ua l'. 1 \ J -^. • |i;rf receipt i |t^dE'r^eclpt < p|0~cf^ppeal IU-' to accompany the. Appeilate court_ RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:41:19 +0530 fr XI-HC-78 qi*IMI Sft*ll<*» 3^'^[T!IRPr, STflti'KS, Rt<rllti^< ^x:ft:..U.^/.^.'i^T 29«-_ 3IT^?T Ta^7 (l^3^8T) sn^T^irR^jch c(S(T3n^Tsbtiich ^tITSK fff?(T STI^T °hl<4Ft1<fl-l t<11<lTiffscit'<Rl^l< ^srt^R'sn^T DIVESION BENCH: HON'^LE SHRI L.C. BHADOO AND & HOlM'BLE SHRI DHIRENDRA MISHRA, JJ CRIMINAL APfEAL N0. 1388 of 1994 Appeiiant : Qopal Ms. S|tate of Madhya Pradesh Respondent Shri Shailendra Dubey, learr^ed Shri U.N.S. Deo, learned Go|vt. counsel for the appeilant. . Advocate for the respondent/State. ORA LJUDGMENT (29.08.2006) Perl-,C.Shadoo,J agai(ist This appeal is directed sentence dated 7.9.1994 passed in Session Trial No. 472/92 wher^by ^ after holding the accused/appellai|it Section 302 of the Indian Penal Cibde the judgment of conviction and order of IVth Additional Sessions.Judge, Bilaspur the learned Additional Sessions Judge guilty for commission of offence under for committing the murder of his father imprisonment for life. namely Tatu, sentenced him to und|ergo ,2. Case of the prosecution in fc|rief is that on 27.6.1992 at about 7.30 a.m. deceased Tatu asked the accused| to give his shirt, who was inside the room P.T.O. sy- <^ XI-HC-78 3ST^II<<lrt'i), SiTn<1'IS, Rwi+iy . G^->9 • /2%%/7V *ii<4Mist»*iict) ••••••••••••••••••••• '^qr 300- 3TI^?TV^SK (l^fg^ST) 3n^T9iTf^riq; ?raT3TR?Tsb*fl=b BHTRKdf^cTSn^T <mf<i<fl-i ii>iMT^teI^t<R]«i< ^sri^R'sn^r and when the accused did not giv^ the room, on which accused Gopal| his head and other parts of the bodil' ground and succumbed to the injuri|ss on seeing this asked the aecused also rushed towards him and ran called Paras. One Firanta also i the shirt, deceased Tatu himself entered all of a sudden attacked Tatu with axe on ', as a result of which Tatu fell down on the >. Sonsai (PW-4), brother of the accused ^s to why he was doing this, the accused |away from the piace of incident. Sonsai 4ame there and after seeing the incident ali of them came there and saw the dead Firanta informed Juthel. Thereafted, body of Tatu. Juthel went to the ^olice station Lormi along with Kotwar and lodged the report of Ex.P/10. Th^ villagers chased the accused and after some distance fhev were able to came on the scene of occurrence, dead body of Tatu after giving noti fcatch hold of him. Thereafter, the oolice Iprepared the Panchanama (Ex.P/2) of the );e (Ex.P/1) to the Panchas. The accused gave memorandum (Ex.P/4) regarcjing the weapon of offence i.e. axe and in pursuance of that the axe was t^ken into possession by the investigating officer under Ex.P/5. Bloodstain|ed and plain soi! was also taken into possession from the place of incid^it under Ex.P/6. One white shirt was also taken into possession from the pla4e of occurrence under Ex.P/7. Clothes of the accused were taken into posse; sion under Ex.P/8. The site plan (Ex.P/9) P.T.O. ^ XI-HC-78 *11^WI Sh+lich TS^ '^lllcd, diTflU'ld, Rtcll+iy ..^r..-^./?..<?.%/.^ 2W— aTT^wraw (yi(^<si^<r) STI^rqiTf^R; (raT3TR5TstiHlti ?RITW flficT sn^r of the place of occurrence was pr^pared was sent for postmortem examin^tion where Dr. A.K. Gupta (PW-9) con<pucted and found as many as seven in^ised iniuries were ante mortem in natil object. The death was due to conha Aftercompletion of the investigati) Judicial Magistrate First Class, Muj Court of Sessions Judge, Bilas| Sessions Judge received the samel 3. Prosecution in order td accused/appeliant examined nine Section 313 of the Cr.P.C. was a which he denied the material and stated that he is innocent, his not know as to who murdered his the crime. °t>l<lf<1<l1-< HI>1flTfftec^<Fi|'KII, ^sri^rsn^T by Patwari. The dead body of Tatu to the Primary Hea!th Centre, Lormi the postmortem on the body of Tatu wounds and opined that the all the re and caused by hard and sharp cutting as a resuit of iniurv No. 1 to the brain. sn charge sheet was fiied in the Court of igeli who in turn committed the case to the ?ur from where learned IVth Additionai on transfer for trial. establish the charge against the ^itnesses. Statement ofthe accused under ^lso recorded by the learned trial Court in app^aring against him in the prosecution case mental condition is not perfect and he did f^ther and he has been falseiy implicated in P.T.O. s' XI-HC-78 3^ '^MM^, •3l!\W , ^WVy. ^- {?X^.:.^.3.?..^/.1.lL-r +ll*lMl sh*ll<h " *'"' " "" " " •"•'' '^H' 30®- 311^1 Mach (y<t^c|^iT) ^ sn^rw R-fi* (TOT sn^r giTR; ?^<ITW trf?(T 311^T chi<ifa41-t Hi><rtT ff te'^l' <R|<^[< ^srf^iTsn^r 4. Learned Additiona! Sessiort advanced bv the Additional Publ accused/appellant convicted and| mentioned in paragraph one ofthisjl s Judge after hearing the arguments ic Prosecutor as atso counsei for the sentenced the accused/appellant as jdament. 5. We have heard Shri Shailentira behaif of the accused/appellant and| on behalfofthe respondent/State. Dubey, iearned counsel appearing on Shri U.N.S. Deo, learned Govt. Advocate 6. Learned counsel for the aptlellant death of Tatu was homicidal in natitre. Dr. A.K. Gupta ( PW-9) and eyewitjiess death of Tatu was as a result of| therefore, it is established that the d^ has not disouted the fact that the Aoart from this, from the evidence of Sonsai (PW-4), it is evident that the injuries inflicted on his body with axe, ath ofTatu was homicidal in nature. 7. As far as merit of the case is for the accused/appellant submitted question the accused was sufferini and in the fit of insanitv he commit entitled for the benefit of Section 84 concerned, at the outset learned counsel Ithat at the time of commission of crime in from unsoundness of mind i.e. insanity |ed the crime in question, therefore, he is bfthe IPC. He further submitted that even Es^ P.T.O. 'js' XI-HC-78 3?? '<ii<ilcf4, OTnu'ie, Rciwy . C^^. ^%e6/<fLi HI*1CIT!ih*<19> ^^e^ 3TT^?T Mach (lcl!^sl'i]fl') 3TI^T?irR'fi»b Bsrr3n^TshH ?Rrrw HfsrT sn^r +i'iifd<fl.f WRrf ir' fs^S <Ri<-4i< %srf^q'gn^T though this plea was raised befor^ without appreciatirig the evidence defence. the learned trial Court but the triat Court ^vailable on record, rejected the plea of the 8. Onthe other hand, Shri U.N State/respondent supported the jij argued that a bare perusal of the| Section 313 ofthe Cr.P.C. goes to the questions put to him very intell| he was suffering from unsoundnes^ I.S. Deo, learned counsel appearing for the iijnpugned judgment of the trial Court and Istatement of the accused recorded under ^how that the accused gave the answers of Igentiy and therefore, it cannot be said that ofmind. 9. in order to appreciate the| counsel it would be profitable to Section 84 of the IPC and Sectiori arguments advanced by the respective h^ve a glance on the relevant provisions of 105 of the indian Evidence Act. To seek protection under Section 84 of the Ij that at the time of commission of of mind. Section 84 contemplates tfiat; 'C, the onus is onthe accused to establish opence he was suffering from unsoundness 'Nothing is an offence wh the time of doing it, by jch is done by a person who, at reslson of unsoundness of mind, is P.T.O. :2.o: XI-HC-78 *ll*1^1Sh*l|ch 3^ •^wid^, aTn+f'Ks, [e|diyi^< ..(?ys9.:./<S%.'?)./.T>I e ^ 20fl— 3TI^?T ^acti (l{c|i^s|^gr) sn^T^rR-fisb traT3TR?T»*11»ti ??<iTW:gf?tT3n^T «hl'i|fct41-ftll^rlT^'te^tRK-iilt ^arf^R'an^T incapable of knowing the doing what is either wrong nature of the act, or that he is or contrary to law; Therefore, when a plea c ascertain whether at the tii under the supen/ening circjumsl mind, was incapable of kno^ing what was either wrong or c| for ascertaining the state o{ offence was committed and (f legal insanity is set-up, the Courl has to tii|ne of commission of offence the accused, circjumstances on account of unsoundness of the nature of act or that he was doing antrary to the law. The crucial point of time mind of the accused is the time when the in order to ascertain whether the accused was suffering from unsounc^ness of mind as to be entitled to the benefit of Section 84 of !PC can df\\'/ which preceded, attended ahd per the provisions of Sectioi|i the accused to discharge ttf 84ofthel.P.C.Section105|. be established from the circumstances, followed the crime. In this connection, as i 105 ofthe Evidence Act there is burden on ie same in order to claim benefit of Section envisages that; 'When a person is burden of proving th^ brining the case vt Exceptions in the Indi^in accused of any offence, the i existence of circumstances 'ithin any of the General Penal Code, 1860 or within P.T.O. XI-HC-78 +<l+iwi sh+ll^ 3^ •^WM^, W^\Wt6, (cjcliy^ C^.'./^^/^[i -9- W^ 2W- 3T(^T'T3W(^35r^T) 3n^T^TR-ii°h cWSn^TshHict) roTTwgfia'aii^T wrfcpfrr WRcff ff teS'(RRSTC ^srf^ITSTI^T any special exception] other part of the same| the offence, is uporj presume the absence or proviso contained in any Code, or in any iaw defining him, and the Court shall fcfsuch circumstances. The provisions of Evidence Act came up for in the Matter of Dahyabhai 361 and the Hon'bte Apex seittion 84 of IPC read with Section 105 of c|onsideration before the Hon'ble Apex Court |Vs State of Gujrat reported in 1964(7)SCR Clourt held that; "....Even if the conclusivelv that he| committed the offenc^ Court may raise a court as regards one offence, including case the court wouid on the ground that th^ on the prosecution w^ proof on the accused than that rests upon a| in other words, probabilities...." accubed was not able to establish was insane at the time he j,the evidence placed before the realsonable doubt in the mind of the |or more of the ingredients of the medis rea of the accused and in that |)e entitled to acquit the accused general burden of proof resting not discharged. The burden of to prove the insanity is no higher party to civil proceedings, which, means preponderance of was ••sie' P.T.O. XI-HC-78 s^' "iii'iiici'M, aiTflu'is, Rifti*f^< iTraw gTW^ "w"y"<l "•"""""^ 2W-~ sn^TTiach (li?it3°«<<T) % sn^r^rR-ii* traT3[i^T»H ?TaRR^cT3TI^r *i'iiFd41-i iw<nTfftec^<Ri't^i< ^3Tf^T3TI^T The Court further held that piea of insanity may be stated c|octrine of burden of proof in the context of |n the fol!owing words: (1) the prosecution must prove b| that the accused had committed requisite mens rea; and the always rests on the prosecuti<|>n the end ofthetrial. •yond reasonable doubt the offence with the burden of proving that from the beginning to (2) there is a rebuttable presumpt| not insane, when he committetl laid down by S.84 of the Pena| rebut it by placing before thf evidence-oral, documentary c^ burden of proof upon him is upon a party to civil proceedin^s ion that the accused was the crime, jn the sense Code:the accused mav fe court alt the relevant (• cireumstantial, but the (p higher than that rests no (3) Even if the accused was conclusively that he was committed the offence.the court may raise a reasonable court as regards one or more offence, including mens rea case the court would be entitl not able to establish iihsane at the time he evipence placed before the Idoubt in the mind of the |of the ingredients of the oflthe accused and in that ^d to acquit the accused P.T.O. XI-HC-78 *<I^C11 StWTcti a^siFn^ra', siTOfl'Ko, Rtditi^<, c-r^ • >s>^^ 1 ^'" ^ WQ- 3n^?r ^iach (lyt^ci^Er) a'n^T^rR-fi'ti 9WT3n^?TsbHlcft ?^arw irfsg'an^T 'hl'ilfd'fl-l qiflcff ^' te'^l' <Rl't<l< ^srf^iTsn^r •-< < on the ground that the genen on the prosecution was not di; Therefore, the prosecution, reasonable doubt that the intention described in Section al(way burden never shifts and it Section 105 of Evidence adt circumstances brining the c^s accused, and the court circumstances. The accused bly existehce uDon circumstances did not exist, to make it consider the a prudent man' would act standard of a 'prudent man. as, oral and documentary ev|i the prosecution evidence. will have discharged his burd^n ^l burden of proof resting ^charged" [in a case of homicide shall prove beyond (iccused caused death with the requisite |299 ofthe Indian Penal Code. This general Ifways rests on the prosecution. But, under ^t the burden of proving the existence of ^se within the said excepfion lies on the |shall presume the absence of such has to rebut the presumption that such placing material before the court sufficient of such circumstances so probable that them. The accused has to satisfy the the material placed before the court, such idence, presumptions, admissions or even the test of 'prudent man' the accused saUsfies P.T.O. XI-HC-78 *11^(I11 Sh+lich 7S( •<||qic|<|, ({iTnti^lfi, Rtclltiy ./3.%.%^.'?..1?. /o ^ 2W- 311^1 lach (yit^t'^ff) sn^T^rf?^T?i cW3TI^TSh1 ^<(TWHf?(T3TT^T chl<lfa41-l Wqcff ff fS<S <Rl<-<;!<. ^sri^Tsn^r 10. In the light of the above !| scrutinize the evidence ofthe pres^ 11. As per the proseeution cas^ the time of incident accused was i aw laid down by the Apex Court we shall snt case. the deceased was father ofthe accused.at •jtting in the room, at that time the deceased asked the accused to give his shif|t but when the accused did not respond, the deceased himself entered the ro<|>m in order to take his shirt, on which the accused all of a sudden attacked| him with axe without any rhyme or reason and that too, for seven times and i the deceased, as a result of wh|ich he fell down and died spontaneously. Therefore, this conduct of the a4cused shows that he assaulted his father without any reason. Apartfromth^ aboutthe incidentfrom Firanta, ha| is his nephew and when he came| ^iflictedseven incised wounds on the bodyof ;t, PW-1 Chowaram in his cross-examination has stated that "accused Gopal i^ a person of weak mind and he does not understand the consequence of hi^ act". PW-3 Juthel Sahuwho came to know ^ stated in his statement that accused Gopal to know about the incident, he went to the house of Tatu and saw that his bro|ther Tatu was lying dead and Gopal had fled away somewhere. Thereafter, h4 atong with Bhagwat and Ganesh brought Gopal back from Naravanour and Ibdged the report of Ex.P/10. In DaraaraDh P.T.O. XI-HC-78 +11*1MI ShHiqi 3^'^IFn^fq', 0x0^16, fc|c|lti^<. .QrQ:.^.*^/.'?.^ W^ 2W— 3T1^?T 4a* (yft^ci^ff) an^rwf?^; gW3TI^Tsb1 ?^ITW;Bf?(T3n^T <tll<<?Ct<fl'l HI>1d~l'^''fet^t'<Rl+iil< ^sff^R'an^T 6 of his evidence he has stated power to understand the the accused and son of the conseq^ences in paragraph - 3 of his cross-< a man of weak mind and since hit |hat Gopal is a mad tike person, he has no of his acts. PW-4 Sonsai, brother of I, who witnessed the incident has stated exanhination that accused is his brother and he is deceised Hle the conseauences of his acts. accused got infuriated, he used to| overpowered by the fit of insanit^, withthesame anybody. In paragr^ph for his mental ailment but it could the wife of the deceased has alsdi childhood he is incapable of understanding has further stated that as and when the starl beating anybody and whenever he was , he used to pick up any thing and assault -6 he has stated that Gopal was treated not be cured. Similarly, PW-5 Jhammibai, corroborated the evidence of PW-4 Sonsai mlad and stated that Gopal became spent Rs.15-20 thousand on his ti|ei the rope. She has further stated the family members and the villag^rs had thrown his uncle's daughter |n they could not afford further trea1 been stated by PW-8 Ganesh. and to get him treated they had already |eatment and they used to keep him tied with Ithat it is true that the accused used to beat and once the accused in the fit of insanity |n the well and since they are poor persons, |ment of the accused. The same thing has P.T.O. •2-6 XI-HC-78 *TTq^n awrqi 3?9'-qT2fra?T, ®Tn<rl'IS,[aKrtltiy **»*»*****»**»«* ^/* * + * 1 ^- 3TT^?T<ra%'(T^3g^?r) 3i]^Tq>rf^iN> craT3TI^Tsh*< warWflfNsn^T +l'i|tfl41-f t<|t<ri)'ff1WI'<Rl«l< ^?3lf^IT3n^T Khan ^ y 12. Therefore, fhere is ample suffering from insanity, otherwise ( own father with axe. The manneil itself indicates that he was sufferini the crime in question. evidence to hold that the accused was here was no reason for him to assault hjs in which the accused assaulted his father 3 from insanity at the time of commission of 13. For the foregoing reasons, finding of the trial Court rejecting th|e sustained. The accused has been faet that the he was suffering fron|i offence as per provisions of Sec|l therefore, he is entitled forthe we are of the considered opinion that the plea of insanity of the accused,cannot be teble to discharge the burden of proving the insanity at the time of commission of the lion 105 of the Indian Evidence Act and ben^fit of provisions ofSection 84 ofthe IPC. seeds and the same is allowed. Conviction ection 302 of the IPC and the resultant 14. In the result, the appealsuct of the accused/appeilant under ^1 sentence imposed on him by the tri|al Court are set aside. He is directed to be set at liberty forthwith if not requirecj in any other case. -["^ Sd/- :'' L.C.BHADOO ^ Judge Sd/- _„„. DHBtENDRA MISHRA Judge s. P.T.O.