- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mohan Vs. State (D.B. CRIMINAL JAIL APPEAL NO.216/2006) ****** D.B. CRIMINAL JAIL APPEAL NO.216/2006 UNDER SECTION 383 Cr.P.C. AGAINST THE JUDGMENT DATED 10.01.2006 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), DUNGARPUR IN SESSIONS CASE NO.79/2004 (75/2004). ******* DATE OF JUDGMENT JANUARY 14,2008 P R E S E N T HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.R.S.Choudhary, for the appellant Mr.J.P.S.Choudhary, Public Prosecutor BY THE COURT (PER HON'BLE MR KHAN J.): The accused Mohan has preferred this Jail appeal under Section 383 Cr.P.C. against the judgment dated 10.1.2006 passed by the Additional District & Sessions Judge (Fast Track), Dungarpur in Sessions Case No.79/2004 (75/2004) by which he was convicted for offence under Section 302 I.P.C. and was - 2 - sentenced to undergo life imprisonment with a fine of Rs.100/- and in default thereof to further undergo 15 days simple imprisonment. Briefly stated the facts of the case are that on 4.7.2004 at about 11.30 A.M. an oral report was lodged by Dhuleshwar son of the deceased, wherein he stated that his father was sleeping on a cot in the chowk and nearby his nephew Ramlal, niece Geeta and mother Ratni Bai were also sleeping. His elder brother Mohan was also sleeping in the Dhaliya. During the night at about 1:00 A.M. his brother Mohan by taking a spade struck on the head of his father and belaboured him. After hearing the noise, they all woke up and saw Mohan was beating his father. From the spot, Mohan fled away. They took his father to the hospital, where he died. On this information, a case under Section 302 I.P.C. Was registered and after investigation, police submitted challan against the accused. The accused Mohan denied the charge of murder of his father and pleaded for trial. The prosecution examined as many as 14 witnesses and exhibited documents Ex.P1 to Ex.P9 in support of the charge levelled against the accused. The accused in his statement recorded under Section 313 Cr.P.C. admitted the correctness of the averments of the witnesses - 3 - deposed against him No defence was led. The learned Additional Sessions Judge after hearing the parties and going through the oral as well as the documentary evidence convicted the accused under Section 302 I.P.C. and sentenced him as above. As this was an appeal from the Jail, amicus curiae was appointed and all necessary formalities were completed. Both the parties were heard and record was gone through. The learned counsel pleaded that the accused was not in his senses at the time of commission of offence and he is a mental patient. Under fits of schizophrenia, he inflicted injuries on the person of his father. As there was no motive, no premeditation and further there was no occasion for the accused to inflict the injuries with an intention to cause death of his father or with an intention to cause such bodily as is likely to cause death, the offence of murder is not made out against him. At the most from the act of the accused it can be inferred that he inflicted injury with the knowledge that the injury, which he is inflicting may cause death. In all probability, the case comes under Section 304 Part-II I.P.C. and not under Section 302 I.P.C. Per contra, the learned Public Prosecutor pleaded that absence of motive is not the criteria to decide about the - 4 - offence of murder. The accused has committed the murder of his father and all brother, mother and nephew and niece who at the relevant time were sleeping nearby the deceased had seen commission of the offence. All the above mentioned witnesses have corroborated the statements of each other that it was only the accused Mohan, who by picking up a spade from nearby place inflicted the head injury, which was either with the knowledge that the injury is likely or in all probability cause death or with the knowledge that it was in the ordinary course of nature is likely to cause death. It is neither an accidental or natural death but a culpable homicide amounting to murder. The defence of mental illness set up by the accused has not been proved, contrary to it during the trial the learned lower court got examined the mental state of the accused and found him fit. So the head injury inflicted clearly reveals that it was either with the intention of causing death or with intention of causing such bodily injury as the offender knows is likely to cause death and bodily injury inflicted is sufficient in the ordinary course of nature to cause death. If knowledge is imputed then the injury caused should be so imminently dangerous that in all probability must cause death. So looking to the corroborative testimony of the witnesses, injury report and statement of the doctor, the learned lower court after finding the accused guilty of the murder has rightly punished him. - 5 - P.W.1 Dhuleshwar son of deceased Roopa, P.W.9 Ram Lal aged 10 years grandson of the deceased, P.W.10 Smt.Ratan wife of the deceased and mother of the accused and P.W. 11 Geeta grand daughter of the deceased and niece of the accused are all the eye-witnesses and closely related with each other. The eye-witnesses are either brother, nephew and niece of the accused and son and grand children of the deceased. The accused Mohan himself is the son of the deceased. By perusing the oral testimony of all these witnesses, it is clearly borne out that the accused by picking up a spade which was lying nearby inflicted head injury on the person of deceased Roopa, who was sleeping nearby. There is nothing in the cross examination of all these witnesses which either creates doubt about their testimony or any probability which could indicate that the accused is being falsely implicated. All these witnesses, each one has corroborated the testimony of other's and are reliable, trustworthy witnesses and have proved that it was only the accused Mohan, who is responsible for causing all the injuries on the person of the deceased. P.W.14 Dr.B.P.Verma who conducted the post- mortem and prepared the report Ex.P9 of the deceased has specifically mentioned that injuries nos. 1,2 & 3 are sufficient to - 6 - cause death and dangerous to life. The injuries are ante mortem in nature and the right front temporal bone of the deceased was found in pieces. So all these three injuries are dangerous and are sufficient in the ordinary course of nature to cause death asper report, statement of the doctor. From the evidence led by the prosecution oral as well as the documentary it is well proved by the prosecution that accused inflicted the injuries with intention or knowledge that whatever injuries he is inflicting on the person of the deceased are dangers and sufficient in the ordinary course of nature to cause death. By perusal of the post-mortem report, there were in all 5 injuries on the person of the deceased. So from the act and conduct of the accused also it is well proved that the accused intended to cause death of his father. Though there is no motive but absence of motive is not the criteria to decide about the fact of the murder because the oral and the documentary evidence clearly proves that the accused is responsible for the murder of his father. The defence of accused being schizophrenic cannot be sustained as there is no such evidence and during trial when he was examined by the psychiatrist he was found to be fit and there was no mental ailment of the accused. So it cannot be presumed that the accused inflicted injuries on the person of his father in the fit of - 7 - mental illness. Contrary to it, he was found fit at the time of examination. More-so, the fit of schizophrenic attack should have been at the time of commission of the offence. There is not an iota of evidence to prove such fact. The corroborative oral testimony oral as well as documentary evidence, gets support and strength from the statement of the accused, who stated under Section 313 Cr.P.C. that whatever deposed by the witnesses against him is correct. All this lead to the conclusion that the prosecution has proved the guilt beyond doubt against the accused. In such circumstances, the offence of murder charged against the accused is well proved beyond doubt. There is nothing in this appeal which requires interference and deserves dismissal. Consequently, the jail appeal filed by Mohan is hereby dismissed. (BHANWAROO KHAN) J. (BHAGWATI PRASAD) J. BKS/-