A-n^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HonLble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.411 of 1995 Kirtanram versus Stateof Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha, J.: o-^ve-^ Sd/- Sunil Kumar Sinha Judge Post for^-07-2011 Sd/- R.S. Sharma Judge •.:^ ^:^^^—"^/,^ f^ •^. ^" ,^ ^' ^'v;'i.^--^:^ '' rtr-f- , HIGH COURT OFCHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.411 of 1995 L-^ Appellant versus Respondent Kirtanram, son of Mansai Uranv, aged about 25 years, resident of Village Petala (Katbudapara), P.S. Sitapur, District Ambikapur (M.P.) (now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri R.K.Jain, counsel forthe appellant. Shri U.K.S.Chandel, Panel Lawyerforthe State/respondent. Criminal Appeal under Section 374(2) ofthe Code of Criminal Procedure JUDGMENT (Delivered on 28^ July, 2011) Per Radhe Shvam Sharma. J.: This appeal is directed against the judgment dated 23-12- 1994 passed by the 2nd Additional Session Judge, Ambikapur, District Surguja in Session Trial No. 111/92. By the impugned judgment, appellant Kirtanram has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: On 29-10-1991 at about 12 Noon, when deceased Jeeturam was returning after taking milk, the appellant demanded milk from him and in this regard some altercation took place between them. Due to the altercation, the appellant assaulted the deceased by an 1 ^ (© Axe, causing his death. Shivnath (PW-1) lodged First Information Report (Ex.P-8) and Merg Intimation (Ex.P-9) in Police Station Sitapur. The investigating officer rushed the place of occurrence, gave notice to Panchas and prepared Inquest (Ex.P-1) on the dead body of the deceased. The dead body of the deceased was sent for post mortem examination to Community Health Centre, Sitapur. Post mortem examination was conducted by Dr. Siya Ram Agrawal (PW-10), who gave his report Ex.P-6, in which he found incised wound over the left side of neck near fourth cervical vertebra of size 21^" x 2"x 31^" which was caused by sharp cutting weapon. Fourth cervical vertebra was cut. This injury was sufficient to cause death. The doctor opined that the death was homicidal in nature. In further investigation, site-plan (Ex. P-7) was prepared by Patwari Gopiram Shukla (PW-11). The Axe was seized from the place of occurrence vide seizure memo Ex. P-2. The seized articles Tangi (Axe), blood stained soil, plain soil and Dhotiwere sent for chemical examination to the Director, Forensic Science Laboratory, Sagar, from where a report (Ex.P-14) was received. According to the FSL report, article A, i.e., 7'a/?g/,article B, i.e., blood stained soil and article D, i.e., Dhoti were stained with blood. After completion of the investigation, a charge-sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 2nd Additional Session Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above. L. X. '^. 3. Shri R.K.Jain, learned counsel for the appellant submitted that the appellant being a person of unsound mind at the time of commission of the offence, his act comes within general exception provided under Section 84 of the Indian Penal Code, hence, the appellant deserves to be acquitted. He further submitted that the distance between the place of occurrence and the place where the eye-witnesses Balsai (PW-7) and Nakul (PW-8) were present was about 1 kilometre, therefore, it was not possible for the eye- witnesses to see the occurrence. Alternatively, learned counsel also argued that the act of the appellant would not be punishable under Section 302 of the Indian Penal Code, even after admitting the entire case, the appellant would be liable for punishment under either part of Section 304 of the Indian PenaLCode. 4. On the other hand, Shri U.K.S.Chandel, learned Panel Lawyer for the State/respondent, supporting the judgment under appeal, argued that the prosecution witnesses are natural witnesses. They have identified the appellant assaulting the deceased. 5. We have heard learned counsel for the parties at length and have perused the record with utmostcircumspection. Conviction of the appellant is based on the testimonies of the eye-witnesses Balsai (PW-7) and Nakul (PW-8). 6. In the instant case, the appellant has taken defence of unsoundness of his mind at the time of commission of the offence. Learned counsel for the appellant drew the attention of this Court to 1 @ the statements of the prosecution witnesses and submitted that Balsai (PW-7), Jairam (PW-2) and Mircharam (PW-3) have admitted jn their evidence that the appellant was behaving like an insane. - 7. Now, we have to see whether the appellant was actually insane at the time of commission of the offence? In view of the plea raised, it is desirable to consider the meaning of expression 'unsoundness of mind'. tn the context 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 mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." 8. Section 84 of the Indian Penal Code deals with general exception. From a plain reading of the above provision, it is evident thatan 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 incapable of knowing the nature of the act, or what he is doing, is either wrong or contrary to law. The Hon'ble Supreme Court has considered this question in Bapu alias Gujraj Singh vs. State of Rajasthan, (2007) 8 SCC 66, in which it has been held thus: "The standard to be applied 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 1 which he suffered had rendered his intellect weak 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 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 his behaviour was queer, cannot be sufficient to attract the application of this section." 9. In Surendra Mishra vs. State of Jharkhand, 2011 AIR SCW 458, the Hon'ble Supreme Court has observed thus: "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 in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere 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 is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code. 10. Next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of 1 ^^.J^'S.J'^.......^^^..^^^._^^^.».^:^, 1 "5 his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian penal Code will not come 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 the crime., Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences ofthe act done by him. ........" 10. Now, we have to see whether the appellant discharged the burden of proving that he was insane at the time or immediately after the offence. In the instant case, no medical certificate has been produced by the appellant to prove his unsoundness of mind or insanity. Balsai (PW-7), Jairam (PW-2) and Mircharam (PW-3) have stated that the appellarit was behaving like an insane since last 4-5 days ofthe occurrence. 11. In absence of medical certificate and treatment papers with regard to unsoundness of mind of the appellant, mere oral 1 ^^•:.^^ ;-^ ..<^r' ..'^. '-'^ statements of the above prosecution witnesses cannot give rise to an inference that the appellant was of unsound mind at the time of commission of the offence. In our opinion, the plea of the appellant does not come within the exception contemplated under Section 84 of the Indian Penal Code. 12. Now, we shall see whether the testimonies of the eye- witnesses Balsai (PW-7) and Nakul (PW-8) are reliable. Balsai (PW- 7) has stated in paragraph 1 that at about 12 Noon, he was standing in front of his house and had seen that the appellant had snatched the Tangi (Axe) from the deceased and had given a Tangi blow on the neck of the deceased. Due to assault on his neck, the deceased had fallen down and, thereafter, the appellant had left the place of occurrence and gone to Macha. Nakul (PW-8) has stated in paragraph 1 that after snatching the Tangi from the deceased, the appellant had given a Tangi blow to the deceased and thereafter had run away from the spot. 13. In cross-examination, Balsai (PW-7) has stated in paragraph 4 that the distance between the place of occurrence and the place where he was standing was not 1 kilometre, but it was about 3 Farlang. His house was situated at a higher place. There were no trees or bushes. In cross-examination, Nakul (PW-8) has stated in paragraph 5 that the distance between the ptace of occurrence and the place where he was standing was not 1 kilometre, but it was about 1 Farlang. 1 ^; /'-' l 8 14. Gopi Ram Shukla (PW-11) has stated in paragraph 3 that the distance between the place of occurrence and the house of Balsai (PW-7) was 412 metres. He has further stated that the place of occurrence was not a hilly area. Balsai (PW-7) and Nakul (PW-8) have also stated that between the place of occurrence and their houses, no hill or trees are situated. Nakul (PW-8) has specifically stated in paragraph 2 that the occurrence had taken place before him and he has also specifically stated that the distance between the place of occurrence and his house where he was standing was hardly 1 Farlang. 15. The appellant wasvery well acquainted with Balsai (PW-7) and Nakul (PW-8) and the occurrence had taken place at about 12 Noon. When an accused is very well known to the witnesses, he can easily be identified by them in the day-light from a distance of 1 Farlang. In the instant case, the appellant was well known to Balsai (PW-7) and Nakul (PW-8) and they were resident of same village and ward. The distance, which has been stated by Balsai (PW-7) and Nakul (PW-8) between the place of occurrence and their houses, was not so far that the appellant, who was resident of the same village and ward where these witnesses resided, could not easily be seen and identified by these witnesses. 16. We have carefully perused the evidence of Balsai (PW-7) and Nakul (PW-8). These witnesses have specifically deposed that on the fateful day, the appellant had snatched the Tangi from the deceased and given a Tangi blow on the neck ofthe deceased. The @ 9 evidence of these witnesses are wholly reliable and can be based for conviction of the appellant. We have also perused the medical evidence. The doctor has opined that the injury inflicted upon the deceased was sufficient to cause his death and nature of the death was homicidal. Therefore, we do not find any infirmity in the finding recorded by the trial Court that it was the appellant who caused the injury on the body of the deceased with the Tangi (Axe) and the deceased died on account ofthe injurycaused by the appellant. 17. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304ofthe Indian Penal Code. ^ 18. The determinative factor in Section 300 of the Indian Penal Code is the intentional injury, which must be sufficient to cause death in the ordinary course of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender's subjective knowledge of the consequence is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury, which in the ordinary course of nature was sufficient to cause death, the divorce factors need to be kept in mind such as the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attended upon the death. 19. The appellant gave Tangi blow on the neck of the deceased. An incised wound was found over the left side of neck near fourth t"N»k- N 10 cervical vertebra of the size of 21/2" x 2"x 3^" which was caused by sharp cutting weapon. Fourth cervical vertebra was cut. This injury was sufficient to cause death. The death was homicidal in nature. The injury, which deceased Jeeturam suffered, clearly shows that an Axe was used by the appellant with a considerable force and injury was caused on the vital part of the body. 20. The nature of weapon used by the appellant, the manner in which he assaulted the deceased, severity of the blow he dealt against the deceased and the part of the body which he selected for giving such blow would show that he had an intention to commit murder of the deceased. We are of the considered opinion that in the above facts and circumstances, the act of the appellant would not be falling under any Exception to Section 300 of the Indian Penal Code and the present cannot be said to be culpable homicide not amounting to murder. x 21. For the foregoing reasons, we do not find any substance in the appeal, which deserves to be and is accordingly dismissed. Sd/- Sunil Kumar Sinha Judge Gopal Sd/- R.S. Sharma Judge