1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Nawal Singh @ Nol Singh V/S State of Rajasthan D.B. CRIMINAL APPEAL NO. 247/2004 Date of Judgment : 12.07.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Devendra Singh – Amicus Curiae for the accused appellant Mr. A.R. Nikub – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This criminal appeal has been preferred by accused appellant Nawal Singh @ Nol Singh S/o Prem Singh against the judgment of conviction and order of sentence dated 19.02.2004 passed by the Additional Sessions Judge, Fast Track No.1, Pali, Camp Jaitaran. The brief facts of the case as unfolded by the prosecution are that the complainant Koop Singh S/o Prem Singh, by caste Rawat Rajput, resident of Kanuja, Kumtiya Beed presented a written report Ex.P.3 at the Police Station Raipur, that on 12.01.2003 between 12.00 noon and 1.00 p.m. he was grazing goats near his house and his grandmother Suji Devi was Page 1 of 8 2 looking after his daughter at his house. At that time his elder brother Nawal Singh S/o Prem Singh came there with an axe in his hand, snatched Koop Singh's daughter from his grandmother and ran away. His grandmother made a huge cry and he immediately rushed to the spot and he alongwith his grandmother followed Nawal Singh. When a short distance was left, Nawal Singh caused injury on the head of his daughter, deceased Mamta and ran away towards Khangarkhet Dhani. The injury was caused on the middle of the head of deceased Mamta and blood started oozing. Nawal Singh caused death of Mamta on account of land dispute. On the basis of Ex.P.3 written report, a criminal case under Section 302 and 448 Indian Penal Code (for short, 'IPC') was registered at the Police Station Raipur and investigation was commenced. During the course of investigation, accused Nawal Singh was arrested and blood stained clothes of deceased Mamta were recovered. Information in pursuance of Section 27 of the Indian Evidence Act was recorded regarding the verification of the place of incident and after usual investigation, charge-sheet was filed against the accused appellant Nawal Singh in the Court of Civil Judge (Junior Division), Bar, from where the case was committed to the Court of Additional District and Sessions Judge, Fast Track No.1, Pali Camp, Jaitaran. Page 2 of 8 3 The accused was charged for commission of offence under Section 448, 364 and 302 IPC. The prosecution examined 14 witnesses to prove the offence charged. The incriminating evidence available on record was put to the accused for explanation under Section 313 of the Criminal Procedure Code (for short, 'CrPC') and the accused produced no evidence in his defence. The learned trial Judge vide the impugned judgment dated 19.02.2004 convicted the accused appellant Nawal Singh for the offence under Section 448, 364 and 302 IPC and punished him for each of the offences as under :- (1) For the offence under Section 302 IPC to undergo Life Imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to further undergo one month's rigorous imprisonment. (2) For the offence under Section 364 IPC to undergo Life Imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to further undergo one month's rigorous imprisonment. (3) For the offence under Section 448 IPC to undergo rigorous imprisonment for one year. Further the trial court ordered to run concurrently all substantive sentences. Page 3 of 8 4 During the course of trial, on behalf of the accused appellant an application under Section 329 of the CrPC was filed and vide order dated 02.12.2003, the said application was rejected by the learned trial court. The main contention of the learned counsel for the accused appellant was that at the time of the incident, the accused appellant Nawal Singh was not of sound mind, therefore, the judgment of conviction and sentence awarded by the learned trial court cannot be sustained. In support of his argument, learned counsel for the accused appellant drew the attention of the Bench towards the application submitted by the counsel for the accused during the course of the trial, which was rejected vide order dated 02.12.2003. Per contra, learned Public Prosecutor argued that the learned trial Judge vide order dated 02.12.2003 rejected the application of the accused appellant and before rejecting that application, a memo of questions was prepared by the court on 02.12.2003 and looking to the answers of those queries made by the court, the accused appellant could not be termed of unsound mind so as to attract the provisions of Section 84 of the IPC. Moreover at the time of investigation, no such fact was placed by the accused appellant before the Investigating Officer and further the record of the learned trial court also shows that the accused was not found of unsound mind. Page 4 of 8 5 We have given our thoughtful consideration to the above arguments and perused the judgment of the trial court. The memo of questionnaire prepared by the learned trial court on 02.12.2003 clearly shows that the accused appellant Nawal Singh was understanding about the fact of evidence, court and other important facts relating to the trial of the case. The next contention of the learned counsel for the accused appellant is that the accused appellant was wrongly implicated by the complainant on account of dispute of land. On the contrary, learned Public Prosecutor argued that injuries were inflicted on the body of deceased Mamta on account of land dispute and their enmity is a double edged weapon. We have perused the record of the trial court and the statements of the witnesses recorded during the trial. Looking to the statements of P.W.4 Kumbh Singh and P.W.6 Suji, the arguments advanced by the learned counsel for the accused appellant cannot be sustained. There is no inherent contradiction in the statements of both these eye-witnesses, their presence on the spot was natural and P.W.6 Suji who was 70 years old at the time of incident was equally related to the accused appellant Nawal Singh also. Further the First Information Report of the alleged offence was registered soon after the occurrence. P.W.1 Dr. Prakash Chand Mathur conducted autopsy on the body of deceased Mamta, daughter of Page 5 of 8 6 Koop Singh, aged 5 years on 13.01.2003 and found external injuries as follows: (i) Extensive lacerated wound over scalp 7 in x 1.5 in x 2 in. (ii) Fracture of left parietal bone. A Part of the brain was out and blood had clotted. As per his statement, the cause of death was extensive lacerated wound with fracture of parietal bone, due to which massive amount of blood was lost, causing hypo volumic shock and consequently death. P.W.1 Dr. Prakash Chand Mathur further opined that all the injuries were ante-mortem in nature. As per the statements of the eye- witnesses, the injury was caused by an axe. The weapon of offence, i.e. Kulhari, is certainly a deadly weapon and therefore, the accused appellant Nawal Singh was aware of the consequences of giving a bodily injury by such a deadly weapon on the body of a 5 years old girl. As per the medical evidence also, there was extensive lacerated wound over the scalp and this injury was responsible for causing the death. On the basis of the evidence available on record, it is proved that the accused appellant Nawal Singh caused bodily injury to deceased Mamta which caused death and at the time of causing injuries accused also had knowledge that such a bodily injury was eminently dangerous and in all probabilities fatal. We have also considered the argument of the learned counsel for the accused appellant regarding the enmity between the complainant and the accused appellant on account of land dispute. Looking at the entire evidence available on record, the Page 6 of 8 7 fact of death of deceased Mamta is proved by the ocular evidence of both the eye-witnesses, namely, P.W.4 Kumbh Singh and P.W.6 Suji and further the cause of death is corroborated by the testimony of P.W.1 Dr. Prakash Chand Mathur. In the entirety of the facts, the argument of the learned counsel for the accused appellant does not carry any force, on the contrary, the fact of enmity on account of dispute of land establishes the motive on the part of the accused appellant to cause death of the deceased Mamta. Further, the prosecution has also proved the essential ingredients of the commission of the offence under Section 364 of the Indian Penal Code. As per the statement of eye witnesses, accused kidnapped deceased Mamta, from the lawful possession of her grandmother PW6 Suji and further it is also proved that accused had kidnapped Mamta in order to cause murder of the deceased. So far as the contention of the learned counsel for the accused appellant regarding the unsoundness of the mind is concerned, there was no evidence produced at the time of investigation nor at the trial regarding this fact. Further, there is no evidence on record that the accused, on account of insanity, was incapable of knowing the nature of the act and he did not know either that act was wrong or it was contrary to law. Section 84 of the Indian Penal Code lays down the legal responsibility in alleged unsoundness of mind. There is no definition of Page 7 of 8 8 unsoundness of mind in the Penal Code. But, this expression is equivalent to insanity and the insanity term is used to describe varying degrees of mental disorders. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. Thus, accused appellant is not entitled to any protection under Section 84 of the Indian Penal Code. In view of the aforesaid discussion, the finding of the learned trial court regarding conviction of the accused appellant under Section 302, 364 and 448 IPC and further the sentence awarded by the trial court for the aforesaid offence does not require any interference. Accordingly, the judgment convicting the accused appellant under Section 302, 364 and 448 IPC and sentence awarded to the accused appellant for the above offences deserves to be affirmed. Resultantly, this appeal filed by the accused appellant Nawal Singh @ Nol Singh S/o Prem Singh is dismissed and the judgment of conviction and order of sentence dated 19.02.2004 passed against the accused appellant by the learned Additional Sessions Judge, Fast Track No.1, Pali, Camp Jaitaran in Sessions Case No. 129/2003 is affirmed. The accused is in jail. He shall continue to serve the sentence as awarded by the trial court. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 8 of 8