CRIMINAL APPEAL No.21 OF 2003 (DB) *** Against the judgment dated 27th August, 2002 and order dated 29th August, 2002 passed by Sri Dharnidhar Jha, Sessions Judge, Rohtas at Sasaram in Sessions Trial No.403 of 2001. *** JANG BAHADUR SINGH, SON OF LATE RADHA KISHUN SINGH, RESIDENT OF VILLAGE PATRAWAL, P.S. BIKRAMGANJ, DISTRICT ROHTAS--------------------------------------------APPELLANT Versus THE STATE OF BIHAR-------------------------------RESPONDENT *** For the Appellant: Mrs.Bela Singh, Advocate (Amicus Curiae) For the State : Mr.Lala Kailash Bihar Prasad,Sr.Advocate (Addl. P.P.) *** P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR.JUSTICE SYED MD.MAHFOOZ ALAM *** Mridula Mishra & S.M.M.Alam, JJ. Sole appellant Jang Bahadur Singh has preferred this appeal from the jail. At the time of admission of this appeal, Mrs. Bela Singh, Advocate was appointed Amicus Curiae to represent the appellant. She has appeared for the appellant at the time of hearing also. 2. The appellant by the judgment and order dated 27.8.2002 and 29.8.2002, respectively, has been convicted under Section 302 of the Indian Penal Code in Sessions Trial No.403/01 by the Sessions Judge, Rohtas at Sasaram. He has been sentenced to undergo rigorous imprisonment for life. 2 3. Bikramganj P.S. Case No.79 of 2001 was registered on 12.6.2001 at 5.00 P.M. on the basis of the fardbeyan of informant Nirmal Singh recorded at 2.30 P.M. at village Patrawal, P.S. Bikramganj, District Rohtas. The informant in his fardbeyan has stated that Jang Bahadur Singh is his youngest brother, informant is the eldest one and second brother Birbal Singh resides with his family at Assam. Three brothers were separate in mess and business for 7-8 years but still they reside in the same house. About one year prior to the occurrence, Jang Bahadur had killed his brother-in-law by throttling his neck but in this regard no police case was instituted by his in-laws as they thought that they have already lost the son and if police case is also instituted, life of their daughter will also be ruined. Jang Bahadur subsequent to the murder of his brother-in-law started residing at his native village Patrawal as earlier he used to reside at his in-laws place. Bibha Devi, wife of Jang Bahadur was not maintaining good relationship with her husband since the murder of her only brother. Jang Bahadur had two sons and one daughter. The informant came to know about the murder of Jang Bahadur’s brother-in-law when Bibha Devi came along with her children from her parents village to village Patrawal and started residing there. On 12.6.2001 at 12.00 noon the informant was taking his bath when children and female members of the family came shouting that Jang Bahadur has locked his wife inside the room and assaulting her. The informant and his co-sharers Birendra Singh, Mithilesh Singh , Shankar Singh, Anil Singh and others ran towards the courtyard and saw that the room of Jang Bahadur was locked from inside. They started shouting and asking Jang Bahadur to open the door 3 but there was no response from inside. The informant became suspicious that his brother might have killed his wife, as such he locked the room from outside and gave a telephonic message to Bikramganj Police Station about the incident. The Officer Incharge along with police force came at the place of occurrence. Outside lock was removed in presence of the police and again request was made to Jang Bahadur for opening the door. Jang Bahadur finally opened the door and came out of the room with blood-stained Dao. The informant thereafter entered into the room and saw that Jang Bahadur had killed his wife Bibha Devi with Dao. Bibha Devi was lying dead with several cut injuries on his person. Jang Bahadur was arrested by the Officer Incharge of the Police Station at the place of occurrence itself. Blood-stained Dao was seized by the Officer Incharge and fardbeyan of the informant was recorded at the place of occurrence. 4. On the basis of the fardbeyan of the informant, Bikramganj P.S. Case No.79/01 was registered under Section 302 of the I.P.C. The Officer Incharge prepared inquest report, started investigation of the case. The dead body was sent for post mortem. Seizure of the blood-stained Dao was made. In course of investigation statements of family members and neighbours were recorded by the Investigating Officer and on completion of investigation charge sheet was submitted against the accused. On submission of the charge sheet cognizance was taken and the case was committed to the Court of Session for trial. 5. The prosecution in order to prove the charges framed against the accused examined altogether nine witnesses. P.W.1 Mithilesh Singh, P.W.2 Birendra Kumar, P.W.4 Girija 4 Devi and P.W.5 Usha Devi were declared hostile and cross- examined by the prosecution. All these hostile witnesses partly supported the case of the prosecution but denied that their statements were recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure. However, from the evidence of the Officer Incharge (P.W.9) it transpires that all these witnesses were examined during investigation and had supported the case of the prosecution. 6. P.W.1 Mithilesh Singh is the neighbour of the accused. He has stated that he came to know about the incident as his house is adjacent to the house of the accused and the informant. He also went to the place of occurrence when the police personnel came and saw the accused being arrested by the police. He has denied that his statement was recorded by the police, as such he was cross-examined by the prosecution. P.W.1 when cross-examined by the prosecution has denied that Jang Babadur was mentally disturbed or insane at the time of occurrence. He has simply stated that the villagers were apprehensive of Jang Bahadur’s behaviour as he used to indulge in altercation with anyone for no reason. 7. P.W.2 Birendra Kuamr has stated that at 12 noon he came to know that Jang Bahadur was assaulting his wife locking the room from inside and finally killed her. The police came at the place of occurrence and arrested Jang Bahadur in his presence. P.W.2 has further stated that he saw the dead body of Bibha Devi at the place of occurrence. This witness has also stated in his cross-examination that villagers used to call the accused as “Pagala” and they were apprehensive of his erratic and rude behaviour. 5 8. P.W.3 Nirmal is Singh the informant and own brother of the accused. He has supported the case of the prosecution as narrated in the first information report. He has stated that in his presence, blood-stained Dao was seized by the police and he put his signature on the seizure list. He has also stated that his second brother resides with his family at Assam. Jang Bahadur his youngest brother was earlier residing at his in-laws house but after he killed his brother-in-law he came back to his native village and started residing there. P.W.3 has denied the suggestion that at any point of time Jang Bahadur had suffered with insanity. In paragraph 8 of his deposition, P.W.3 has stated that no one has ever noticed any abnormal behaviour of Jang Bahadur which can be of an insane person. In paragraph 11 of his deposition, P.W.3 has stated that Jang Bahadur was not doing anything for earning his livelihood and his wife was maintaining him and his children from the money she used to bring from her parent’s place. This part of the deposition of P.W.3 indicates that money might have been one of the reasons for killing Bibha Devi as Jang Bahadur had no source of income for fulfilling his requirements. 9. P.W.4 Girija Devi is the aunt of the accused. She has tried to make out a defence for the accused in her deposition. She has tried to bring the act of accused in the category of an act done due to insanity. P.W.4 was declared hostile but she has supported the part of the prosecution case that the police arrested Jang Bahadur as he killed his wife. P.W.4 has also stated that Jang Bahadur was assaulting his wife and Usha Devi tried to restrain him but he continued to assault Bibha Devi till she died. 6 P.W.4 has stated that on account of erratic behaviour the villagers used to call Jang Bahadur “Pagala”. 10. P.W.5 Usha Devi is the sister-in-law of the accused and wife of the informant Nirmal Singh (P.W.3). She was also declared hostile as she denied that her statement was recorded by the police during investigation. She was cross- examined by the prosecution. P.W.5 has also tried to make a case of insanity for the accused. In paragraph 5 of her cross-examination, P.W.5 has stated that for the last five years Jang Bahadur had developed insanity and his mental condition was not normal. 11. P.W.6 Anil Singh has fully supported the case of the prosecution. He has stated that he is related as brother to the accused. P.W.6 has stated that when the police came at the place of occurrence he also went there and saw that Bihha Devi has been killed by Jang Bahadur inside the room. He saw the dead body of Bibha Devi lying dead with several injuries. He also witnessed Jang Bahadur coming out with blood-stained Dao in his hand which he had used for assaulting his wife and killed her. 12. P.W.7 Shankar Singh is the villager and co-sharer of the accused. He has fully supported the case of the prosecution. He has stated that information regarding the incident was given to the police by P.W.3. Even after arrival of the police Jang Bahadur was not opening the door. He remained sitting with blood-stained Dao. In paragraph 9 of his evidence, P.W.7 has specifically stated that as per his knowledge, the accused has never suffered with any attack of insanity. 13. Dr.Ashok Kumar Singh, P.W.8 had conducted post mortem examination on the dead body of deceased Bibha Devi on 7 13.6.2001. P.W.8 had found the following ante mortem injuries on the person of the deceased:- (i) Incised wound 5” x 3” x trachea cut deep over front of neck. (i) Incised wound 5” x 1 ½” x mandible cut deep below right ear. (ii) Incised wound 5” x 1” x muscle deep just below injury no. (ii). (iii) Incised wound 4” x 2” x vertebra cut deep over nap of neck. (iv) Incised wound 2” x 1”, skin and subcutaneous tissues deep over right shoulder, posteriorily, (v) Incised wound cutting almost whole of left wrist including bones, except some portion of skin and subcutaneous tissues posteriorily. (vi) Incised would 1” x ½” x skin and subcutaneous tissues deep over right wrist. Injury nos. 1, 2 and 4, in the opinion of the doctor, were dangerous to life in the ordinary course of nature. All the injuries were found to be caused by sharp cutting weapon like Katta or Dao. 14. P.W.9 Brajnandan Prasad was posted as Officer Incharge of Bikramganj Police Station on the date of occurrence. He has deposed that on 12.6.2001 at 1.30 P.M. he got a telephonic message that at village Patrawal, one person has killed his wife. He made station diary entry no.270 and proceeded with the police party for village Patrawal. He reached the village Patrawal at 2.30 P.M. and came at the house of Nirmal Singh. He recorded fardbeyan of Nirmal 8 Singh. At that time Shiv Kumar Ram and Bablu Singh alias Rakesh Ranjan were present. He also recorded the re- statement of the informant, forced the accused to open the door and on opening of the door, prepared inquest report. He sent the dead body for post mortem examination of the dead body. He found several injuries on the person of the deceased. The blood was found fallen on the cot on the floor. He also found the blood-stained Dao and prepared seizure list. Statements of Mithilesh Singh P.W.1, Birendra Kumar P.W.2, Girija Devi P.W.4 and Usha Devi P.W.5 were recorded by him and all of them have narrated before him that Jang Babadur had locked himself with his wife inside the room where he repeatedly assaulted his wife and killed her. P.W.5 had disclosed that Bibha Devi was shouting for help but she could not be saved as the room was locked. P.W.9 has stated that P.W.5 Usha Devi had stated before him that she informed her husband P.W.3 and thereafter telephonic message was given at the police station. P.W.9 arrested the accused after the room was opened. P.W.9 in paragraph 25 of his deposition has stated that during investigation he did not find any reason for sending the accused for his mental treatment or consulting Psychiatrist as there was no symptom of insanity. P.W.9 has stated that he did not find that the accused had any remorse for his brutal act. Further he has deposed that he also recorded the statement of the accused after his arrest and produced him before the court. 15. The evidence on record is sufficient to indicate that Jang Bahadur killed his wife Bibha Devi by assaulting her with Dao. The evidence of the witnesses does not show that there was any provocation from the side of the deceased. 9 The accused has not also come out with any specific defence that he has falsely been implicated or there was any enmity with the informant or witnesses due to which a story has been concocted by them. Only question which has been posed for consideration is – insanity of the accused, at the time of commission of the offence, so as to get the benefit of Section 84 of the I.P.C. 16. Mrs. Bela Singh arguing on behalf of the appellant has tried to bring the act of the accused within the purview of Section 84 of the Indian Penal Code. Section 84 of the I.P.C. says that 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. Counsel for the appellant has submitted that it is well settled that when a person is accused of any offence, the burden of proving the existence of circumstance bringing the accused within any of General Exception in the Indian Penal Code is upon the accused. In criminal cases burden of proof is always upon the prosecution. When sufficient proof of the commission of a crime has been produced by the prosecution connecting the accused with the crime in that case the onus of establishing innocence shifts to the accused when he pleads existence of any circumstances to get benefit of Section 84 of I.P.C. For bringing any act of accused under the purview of Section 84 of the I.P.C., the accused has to prove the existence of circumstance within any special or general exception. Section 105 of the Evidence Act provides that onus for proving the existence of circumstance is upon the 10 accused and in case this onus is not discharged, the court shall presume the absence of circumstance. 17. Counsel for the appellant has admitted that in fact, plea of insanity in order to prove the existence of circumstance and to bring the act of the accused within any of the general exception of the Indian Penal Code was not taken at the earliest stage of the proceeding. In order to explain this laches on the part of the accused, it has been submitted that from the evidence on record, it is evident that behaviour of the accused was abnormal as he was called as “Pagala” by the villagers. P.W.1, P.W.4 and P.W.5 all have accepted that villagers were apprehensive of his behaviour. P.W.5 has specifically stated that for the last five years behaviour of Jang Bahadur was not normal. In spite of sufficient knowledge the prosecution witnesses who are family members did not take any step for defending the accused when on account of insanity he had brutally killed his wife for no reason. P.W.3 has admitted in his evidence that he never tried to meet his brother after his arrest by the police. All the family members, in fact, detached themselves from the accused on account of his brutal act, as such the court had to engage a lawyer for defending him. This fact has sufficiently been indicated in the impugned judgment and order sheet of the trial court. There was no one to defend the case of Jang Bahadur Singh, as such an Advocate was appointed by the court. The advocate appointed by court also did not make any effort either to meet the accused or for a dialogue with him. Due to these reasons, defence of insanity could not be taken on his behalf at the earliest stage of the proceeding. These are circumstances which explain the laches on the part of the accused for not 11 proving the existence of circumstance of insanity though he was actually suffering from insanity at the time of occurrence. 18. Mrs. Bela Singh, counsel for the appellant, has placed reliance on a decision reported in JT 2001 (10) SC 203 (Durga Domar Vrs. State of M.P.).In that decision also the accused had not taken any plea of insanity before the trial court. High Court also did not consider the case of accused to give him benefit of Section 84 of the I.P.C. for his brutal act of killing five innocent children. The accused was awarded death sentence by the trial court and confirmed by the High Court. Finally the Apex court for the first time considered the evidence on record and came to the conclusion that narration of the occurrence itself gives impression that the accused had some mental derailment. This was considered specially for the reason that there was no motive attributed to the accused for such a ghastly massacre of innocent children. The Apex Court called for a report from the Psychiatrist of Mansik Aroghashala. The report disclosed that accused suffers from Schizophrenia. Considering the report, death sentence was altered to life imprisonment maintaining the conviction. Counsel for the appellant submits that the fact of the reported decision is fully applicable to the facts of the present case. In this case also there is no motive attributed to the accused for his brutal act of killing his wife. The evidence is also there to show that the village people did not treat him as normal person. In the present case, in spite of all these facts, the prosecution did not take any step for calling for any medical report. Counsel for the appellant submitted that in fact there should be re-trial of the accused, a 12 report be called for from the specialist/psychiatrist and only on consideration of the evidence and report on record, judgment and order be passed by the trial court. 19. Mr. Lala Kailash Bihari Prasad, counsel for the State, submitted that there is no evidence on record to show that the appellant suffered with any mental disorder at the time of occurrence. Even the order sheet of the trial court and the judgment of the trial court do not indicate that the accused was suffering from any kind of insanity for which act done by him can be categorized within general or special exception in order to bring the case within the purview of Section 84 of the I.P.C. In order to examine the submissions advanced by counsel for the State and the appellant, we also looked into the order sheet of the trial court. On perusal of the order sheet of the trial court, it is apparent that the accused always answered properly the questions put by the trial court. After arrest when he was presented before the Magistrate for the first time no sign of abnormality was noticed by the court. He properly answered the questions put to him. The Magistrate asked him how he received his injury on his person and he replied that the villagers and family members assaulted him. The court had appointed an Advocate for him and he duly accepted it. During the trial he filed an application before the court for changing his lawyer. Such an act cannot be expected from an insane person. His behaviour was completely normal when his statement was being recorded under Section 313 of the Cr.P.C. He properly understood the circumstance put before him and replied the question. Not a single chit of paper was brought before the trial court to show that at any point of time he suffered with insanity as 13 there was no report from the jail informing his abnormal behaviour. P.W.1 and P.W.3 have stated in specific terms that the accused never suffered with any kind of insanity in past. The evidence of the prosecution witnesses simply shows that the accused is a very arrogant and ill-behaved person having lust for money. He killed his brother-in-law for property. Considering all these facts, we find that the decision relied by the counsel for the appellant is not applicable to the facts of the present case. 20. I would also like to refer paragraph 25 of the trial court’s judgment which is as follows:- “I find from the perusal of order dated 30-5-2002 that he was very much conscious about his defence and wanted his advocate changed but that prayer was rejected by me on account of the industry and labour invested by Shri Kashyap in defending the accused. I find from the perusal of the evidence referred to me that there is nothing on the record to indicate that the accused indeed was mad or could have been mad from before rather he appears to me a very conscious and composed persons attending to his trial regularly and taking interest in it. I had the occasion of talking to him on a couple of occasions also and found no trait in him which could characterize him insane. In that light I find that submission of the defence not appearing to be acceptable.” 21. Since there is nothing on record to bring the act of the accused under the purview of Section 84 of the I.P.C., as such the appellant is guilty of committing an offence of culpable homicide amounting to murder punishable under Section 302 of the I.P.C. 22. Considering the evidence of the prosecution witnesses present on record, we have no other option than to affirm the judgment of the trial court convicting the accused- 14 appellant under Section 302 of the Indian Penal Code and awarding rigorous imprisonment for life. This appeal is, accordingly, dismissed. Mrs. Bela Singh, Amicus Curiae, has taken keen interest and made sincere effort to defend the appellant. She should be paid her fee by the Patna High Court Legal Aid Committee amounting to Rs.2500/- (Twenty five hundred). The first order appointing to Mrs. Bela Singh, Advocate as Amicus Curiae and the last page of the order be handed over to her. (Mridula Mishra, J.) (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna The 4th December, 2008 N.A.F.R. (B.T.)