DEATH REFERANC No.3 OF 2007 ----- (Reference made by the Additional Sessions Judge, Fast Track Court, 5th, Sheikhpura vide letter no.41 dated 9.5.2007 and appeal against the judgement dated 7.5.2007 passed by the Additional Session Judge, Fast Track Court, 5th, Sheikhpura in Sessions case no. 583/03, Tr. No. 96/2007. -------- STATE OF BIHAR----------------------------------------------------(Appellant) Versus LALAN SINGH----------------------------(Respondent/ Condemned Prisoner) -------- With CR. APP (DB) No.786 of 2007 LALAN SINGH-------------------------------------------------------(Appellant) Versus STATE OF BIHAR--------------------------------------------------(Respondent) -------- For the Reference and State in the appeal: Mr. Ashwani Kumar Sinha, A.P.P. For the Appellant : Mr.Janardan Prasad Singh, Adv. Mr. Rabindra Pd. Singh, Adv. Mr. Nandlal Pd. Sinha, Adv. ---------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE MADHAVENDRA SARAN M. Saran,J. The death reference and Cr. Appeal arise out of the same judgement and order passed by the learned Additional Session Judge, Fast Track Court, 5th Sheikhpura in Sessions case no. 583 of 2003/ Tr. No. 96/2007 convicting the sole appellant of Cr. Appeal no. 786/2007 u/s 302 of the Indian Penal Code (in short as Code) and sentencing him to death. He has also been convicted u/s 27 of the Arms Act and sentenced to undergo R.I for seven years. The learned Additional Session Judge has made reference of the case for confirmation of the death sentence. 2 2. The prosecution story ran as follows: - PW 7 Satendra Singh gave his fard bayan on 28.10.2001 at 8.15 PM at his Darwaja before S.I Irfan Ahmad of Kewati OP stating therein that on the same day at about 5 PM while his father, Triveni Singh, was untying the calf of buffalo for the purpose of taking milk co- villager Lalan Singh (appellant) came there armed with pistol and fired shot at his father. Informant’s father shouted that Lalan Singh had fired shot at his ribs. The informant’s father fell down and died. In the meantime, Upendra Singh who was sitting at the Dalan of Raj Banshi Singh asked Lalan Singh as to what had he done. At this Lalan Singh fired at the head of Upendra Singh. He also fell down. Ramanki Singh who was sitting in the Dalan of Raj Banshi Singh started fleeing away raising hulla that Lalanwa had committed two murders. Raj Banshi Singh concealed himself in the surrounding area. Lalan Singh chased Ramanki Singh. Later on it came to be known that he shot at Ramanki Singh near the house of Sipahiji. Lalan Singh thereafter fled away towards south of the village. The family members and the villagers took Upendra Singh and Ramanki Singh to Barbigha Hospital for treatment but on the way to hospital they died. Thereafter they were brought back to the village. It is said that prior to the present murders informant’s father had given evidence against Lalan Singh and due to that reason he committed the present occurrence. On the basis of fard bayan of the informant the police registered Barbigha PS case no. 249/2001 dated 29.10.2001 and after investigation submitted charge sheet. 3. The defence of the appellant was total denial of the alleged occurrence and false implication in the case. The appellant also took the defence of insanity and in support of which he examined three witnesses and also brought 3 on record some medical papers. 4. To prove the charges the prosecution during trial examined eight witnesses who are PW 1, Bitani @ Kalika Prasad, PW 2, Niranjan Kumar, PW 3, Binod Kumar, PW 4, Pravin Kumar, PW 5, Rohit Kumar, PW 6, Raj Banshi Singh, PW 7, Satendra Singh and PW 8 Dr. Pravin Kumar Sinha. 5. PW 8 on 29.10.2001 at about 8.15 AM performed autopsy over the dead body of Ramanki Singh and found the following ante mortem injuries:- (i) Wound of entry- oval lacerated wound in the neck 1”x1/2”x muscle deep and bone deep with blackening just below right ear. On dissection extra- vasation of blood was present below the scalp. The cranial cavity was full of dark blood and blood clots. Brain matter was lacerated and a shot was found inside the cranial cavity. The shot was preserved, sealed, signed and handed over to the police. (ii) Fracture of right temporal bone was also found. The death in the opinion of doctor was due to shock and hemorrhage as a result of the above injuries caused by fire arms. Time elapsed since death within 24 hours. Post mortem report is exhibit-5. 6. On the same day at about 8.30 A.M. he performed post mortem examination over the dead body of Upendra Singh and found following ante mortem injuries:- (i) Wound of entry; one lacerated circular wound ¾” in diameter in right occipital parietal region- brain cavity deep. On dissection extra- vasation of blood found present, fracture of occipital and right parietal bone. On opening of skull brain matter was found 4 lacerated, blood and blood clots were present in the cranial cavity. One bullet was found lodged in the left temporal area of the brain cavity which was recovered, sealed, signed and handed over to the police. As per opinion of the doctor the death of the deceased was due to shock and hemorrhage as a result of the above injuries caused by fire arms. Time elapsed since death was within 24 hours. Post mortem report is exhibit 5/1. 7. Then on the same day at about 8.45 A.M. post mortem was done on the body of deceased Triveni Singh and following ante mortem injuries were found:- (i) Wound of entry- one lacerated circular wound ½” in diameter with inverted margin edge, blackened on right chest laterally in 5th inter costal space. On dissection extra-vasation of blood was found present. Both lungs were found lacerated. Blood and blood clots were present in the pleural cavity. One bullet was found lodged in the left scapular muscle which was recovered, sealed, signed and handed over to the police. (ii) Fracture of right 5th rib was found. In the opinion of doctor the death took place due to shock and hemorrhage as a result of above mentioned injuries caused by fire arms. Time elapsed since death was within 24 hours. Post mortem report is exhibit 5/2. 8 The sole question now arises for determination as to who caused the above three murders and in what manner the same were caused. PW 1 Bitani @ Kalika Prasad is said to be an eye witness of the murder of Ramanki Singh. He stated that around 5 to quarter past five in the evening he was returning to the village from Khanda. When he went ahead the house of 5 Awadhesh Jha he heard a voice “Lalanwa killed two persons”. It was the voice of Ramanki Singh. This witness found that appellant, Lalan Singh, was running behind Ramanki Singh with pistols in his both hands. When Ramanki Singh reached near the house of Sipahijee the appellant shot at the neck of Ramanki Singh who fell down. Lalan Singh thereafter fled away towards south after firing shot. PW 2 Niranjan Kumar was with this witness. They took Ramanki Singh with the help of the villagers on a cot to the road where Upendra Singh was also lying in injured condition. He had also been shot by the appellant. From there both the injured were taken to Barbigha Hospital where the doctor declared them dead. They were brought back to the village. This witness learnt that since Triveni Singh had deposed against the appellant in favour of Balram Singh @ Ram Swaroop the present occurrence took place. 9. PW 2, Niranjan Kumar, claims himself to have seen the murder of Ramanki Singh. He stated that he was returning along with PW 1 from the field and when they reached near the house of Awadhesh Jha he saw his father Ramanki Singh coming raising alarm that Lalan shot at two persons. Lalan Singh was chasing his father with pistols in his both hands and when his father reached near the house of Ram Awtar, Lalan Singh shot at him on his neck below the right ear and fled away towards south. This witness along with PW 1 and villagers reached near Ramanki Singh who was in pain. His body and cloth were smeared with blood. They immediately brought a cot and brought him on the road to take him for treatment. On the road he saw Upendra Singh lying unconscious. He was also shot at by Lalan Singh. He had injury on his head. According to this witness also Triveni Singh had deposed against Lalan Singh in a case and due to that reason he killed him also. 6 10. PW 3, Binod Kumar, is son of deceased Upendra Singh. He claims to be an eye witness of the murder of Triveni Singh and Upendra Singh. He stated that about 5 PM in the evening he was sitting at his Dalan with Pravin Kumar (PW 4). Lalan Singh came to the cattle shed of Triveni Singh armed with pistols in his both hands. Triveni Singh was untying the calf for milking his she buffalo. Lalan Singh fired shot at him which hit on his right ribs. Triveni Singh uttered that Lalan Singh son of Sachidanand Singh had shot at him. He died at the spot. At that time Satendra Singh (PW 7) and Rohit Kumar (PW 5) were also present at their Bathan. They fled away to their houses after firing of shot. According to this witness Upendra Singh, Ramanki Singh and Raj Banshi Singh at that time were sitting at the Dalan of Raj Banshi Singh. They came out in the Verandah. Upendra Singh said “Lalan what did you do” upon which Lalan Singh also shot at him which hit on his head. Raj Banshi Singh then shut the door of Dalan and Ramanki Singh started running and raising hulla that Lalan killed two persons. Lalan Singh ran after him. This witness stayed there to take care of his father. After coming on the road he found that Ramanki Singh had been shot at the back of his temple. 11. PW 4, Pravin Kumar, also claimed to have seen the first two murders. He stated that he was sitting with Binod Singh in front of Dalan of Upendra Singh. In the meantime, Lalan Singh came from east armed with pistols in his both hands and went towards Bathan of Triveni Singh. Triveni Singh was untying the calf for milking the buffalo. Satendra Singh and Rohit Kumar were also there. As Triveni Singh stood up Lalan Singh shot at him on his right ribs. Blood started oozing. His clothes became wet with blood. Triveni Singh said that Lalan Singh shot at him. Adjacent south of it Raj Banshi 7 Singh, Upendra Singh and Ramanki Singh were sitting in the Dalan of Raj Banshi Singh. Upendra Singh came out and said “what did you do” upon which Lalan Singh fired shot at him which hit on his head. Ramanki Singh started running raising hulla that Lallan Singh shot at two persons. Lalan Singh started chasing him. This witness went to see his Mama Upendra Singh. After two minutes he heard another sound of firing. He along with others brought Upendra Singh on the road. Ramanki Singh and Upendra Singh were taken to Barbigha hospital where the doctor examined both of them and declared them dead. Thereafter they returned back to the village with the dead bodies. He also came to know that Lalan Singh had earlier shot at one Ram Balak Singh and Triveni Singh was a witness in that case and that is why he killed him. 12. PW 5, Rohit Kumar is son of informant Satendra Singh and grand son of deceased Triveni Singh. He claims himself to be an eye witness of murder of Upendra Singh and Triveni Singh. He has stated that at the time of alleged occurrence he was sitting at the Bathan along with his father Satendra Singh. Triveni Singh was untying the calf for milking the buffalo. In the meantime, Lalan Singh came to Bathan armed with pistols in his both hands and shot at his grand father, Triveni Singh, at his right ribs. He further stated that at that time Raj Banshi Singh, Ramanki Singh and Upendra Singh were sitting at the Dalan of Raj Banshi Singh. On seeing the firing Upendra Singh told “Lalan what did you do”. At this Lalan Singh shot at Upendra Singh on his head. Ramanki Singh started running away raising hulla that Lalan killed two persons. Lalan Singh ran after him and just 2-3 minutes thereafter this witness heard sound of firing and came to know that Ramanki Singh has also been 8 shot at. He saw fire arms injury below the right temple of Ramanki Singh. The people took Ramanki Singh and Upendra Singh to doctor at Barbigha. The doctor declared them dead. 13. PW 6, Raj Banshi Singh, is also an eye witness of the first two murders. He was sitting along with Upendra Singh and Ramanki Singh at the Dalan. He has narrated the entire story. 14. PW 7, Satendra Singh, is son of Triveni Singh. He is informant of this case. He stated that while his father was untying the calf for milking the she buffalo Lalan Singh came there and shot at him. The shot hit at his right ribs. He fell down and cried that Lalan had shot at him. He died there itself. According to this witness Upendra Singh, Ramanki Singh and Raj Banshi Singh at that time were sitting at the Dalan of Raj Banshi Singh. Upendra Singh said “Lalan what did you do”. Lalan Singh then went and shot at Upendra Singh. He fell down. Ramanki Singh ran away shouting that Lalan had committed two murders. Lalan started chasing Ramanki Singh. Later on it came to be known that he shot at Ramanki Singh near the house of Sipahijee. The family members and villagers took Ramanki Singh and Upendra Singh to Barbigha Hospital for treatment. According to this witness also the reason behind the murder is that earlier Lalan Singh had shot at one Ram Balak Singh and in that case Triveni Singh was a witness and due to that reason he murdered Triveni Singh. Police came and recorded fard bayan of this witness upon which his signature is Exhibit 1. He further stated that police prepared inquest report of three deceased in his presence. He further stated that he did not go anywhere but Ramanki Singh and Upendra Singh were taken to Barbigha Hospital. 9 15. The appellant during the trial took the defence of insanity also and in support of which he examined three witnesses who are DW 1, Dr. Jairam Pandit, DW 2, Arun Kumar Gupta and DW 3, Sachidanand Singh. DW 1 averred that on 25.10.2001 he treated appellant, Lalan Kumar, and issued prescription Exhibit- A. He also issued a certificate Exhibit –A/1 on the same day indicating that the appellant was suffering from psychiatric mental disorder and advised him to consult the expert. In cross- examination he explained the word “mental disorder” means that the patient was restless. From the prescription Exhibit-A it appears that DW 1 is not a Psychiatric rather he is an expert of chest and stomach diseases. As mentioned above, the present occurrence took place on 28.10.2001 and the certificate Exhibit-A/1 was issued by the doctor at Sheikhpura on 25.10.2001. Normally a certificate is issued by a doctor for producing the same before an authority. In this connection it is relevant to examine the evidence of DW 3, who is father of the appellant. He stated that his son, that is the appellant, had been suffering from mental disorder since 9-10 years and was under regular medical treatment. No medical paper has been filed to show that the appellant was undergoing treatment for mental disorder on the date of the alleged occurrence. DW 3 was examined in the court on 4.8.2006 and in an answer to courts’ question he replied that at present the accused is quite normal. Whereas according to D.W.1 and his certificate, the appellant was seen by him only once as an outdoor patient, according to D.W.3, the appellant, his son, was treated for 2 days as an indoor patient. DW 2 on 3.12.2002 was posted at Ranchi Mental Hospital as Psychiatric. He proved the letter no. 3608 dated 3.12.2002 Exhibit- B containing the opinion of the medical board of three doctors in respect of 10 Lalan Singh issued in connection with Sessions case no. 427/1999. In the said letter it has been suggested that Lalan Singh was suffering from “Bipolar Disorder and Hypomanic”. According to this witness after some improvement the accused was found fit for trial and recommended to be discharged from the hospital. Accordingly, the Chief Judicial Magistrate was informed. This witness was also a member of the medical board. During evidence in court he examined the appellant on 12.6.2006 and informed that he does not find any abnormality in him. 16. It appears from Exhibit- D dated 7.2.2002 that the jail doctor had examined the appellant and advised to send him to Mental Hospital, Ranchi for proper diagnosis and treatment. It further appears from Exhibit- C dated 13.4.1999 that when the appellant was in custody in connection with another case at that time also the jail doctor had advised him for check up by a neuro physician. At that time the jail doctor had found him suffering from insomnia. 17. A fundamental principle of criminal law is that mensrea is an essential element of every offence and no crime can be said to have been committed if the mind of the person doing the act is not guilty. To establish the defence on the ground of insanity it has to be proved clearly that at the time of committing the crime the accused was labouring under such a defect of reason, from disease of mind as not to know the nature and the quality of the act he was doing. Therefore, the crucial point of time at which the insanity of mind should be established is the time when the crime is actually committed. In order to establish whether the appellant was insane at the time of the alleged crime it will be relevant to consider the state of mind immediately preceding as well as subsequent to the commission of offence. In the present case the 11 allegation is that accused shot three persons one after another. There is evidence to show that after committing the last murder he fled away towards south. This shows that he had no feeling of remorse or repentance for what he had done. 18. From the evidence of DW 3, father of the appellant, it appears that a dispute over land was allegedly going on between him and the informant from before as no share in the crop was given to him. He also claimed that his son, nephew Raj Banshi Singh, Triveni Singh and others had jointly cultivated 16 Bighas of land of Sogra estate. That a Sessions case bearing no. 172/1994 was pending against the informant in the court. There is no evidence to show that the appellant was taking any medicine for his mental disorder before the present occurrence. DWs 2 and 3 during evidence in court found the appellant in prefect normal condition. There is also no evidence to show that the police officer at the time of arrest of the appellant noticed any abnormality in the behaviour of the appellant. There is also no evidence of the villagers to show that the accused demonstrated any mental disorder. The trial Judge during trial and examination of the accused u/s 313 of the Code of Criminal Procedure did not find him to be insane. In view of the materials on record it cannot be accepted that the accused was suffering from legal insanity at the time of occurrence. 19. Learned counsel appearing on behalf of the appellant has contended that plea of insanity was taken in the year 1999 itself when the appellant was in custody in connection with another case. He contended that the said disease continued and in the year 2002 the appellant was sent to Mental Hospital, Ranchi for treatment. He, thus, contended that at the time of present 12 occurrence the appellant was a person of unsound mind and by reason of such disease he was incapable of knowing the nature of his act. He also contended that when the plea of insanity is taken mensrea becomes important. In support of his contention he placed reliance on the following two decisions. (i) 1986, Cr. Law Journal, 271 and (ii) 2006, (1), PLJR, 389. In the case of Kuttapan vs State of Kerala, 1986, Cr. Law Journal, 271 it has been observed:- An accused is presumed to be innocent till the contrary is proved beyond reasonable doubt. Therefore, the burden lies on the prosecution to establish the guilt of the accused. Prosecution has to prove the actus reas and mensrea. The general burden never shifts and it always rests on the prosecution. However, it has to be pointed out that there is a presumption of sanity though the presumption is rebuttable. Everyone is presumed to know the natural consequences of his acts. If a person deliberately strikes with another with a deadly weapon which, according to common experience, is likely to cause an injury, sometimes even a fatal injury depending upon the nature of the weapon and the site of the injury, it should be reasonable to infer that what he did was with the intention to cause the kind of injury which resulted from the act. In such a case, prosecution must be deemed to have discharged the burden resting on it to establish the mensrea i.e. the intention of the accused in inflicting the blow with a deadly weapon. Prosecution is ordinarily not required to establish that a person who strikes another with a deadly weapon is capable of knowing the nature of the act or what he was doing was either wrong or contrary to law. Then in 2006 (1) PLJR, 389 (Nanhak Ram vs the State of Bihar) it has been held that burden of proving whether the accused had the requisite mensrea beyond reasonable doubt lies heavily on the prosecution and the accused has to satisfactorily establish his plea of insanity by placing such materials before the court. 20. These principles have been reiterated and followed in several other decisions. The crucial point of time at which the unsoundness of mind should 13 be established is the time when the crime was actually committed. For this purpose the state of his mind both before and after the commission of act is also relevant. I have mentioned some of the circumstances appearing against the accused/appellant and it cannot be accepted that the appellant was suffering from legal insanity at the time of alleged occurrence. 21. It is the prosecution case that in the case lodged by Rambalak Singh against the appellant deceased Triveni Singh was a witness and he was adamant to depose in the case whereas the accused wanted to prevent him from giving the evidence. From the judgement of Barbigha PS case no. 300/1998, dated 23.11.2006, Exhibit- E, filed by the defence it appears that said case was filed by Rambalak against the accused appellant which ended in acquittal. The F.I.R or charge- sheet of that case has not been produced to show that the deceased Triveni Singh was not a proposed witness. The date of judgement shows it is much after the present occurrence of October, 2001. Therefore, it is not surprising if it does not appear from the judgement that Triveni Singh was a witness in the said case. Oral evidence or motive is quite reliable. Moreover, the question of motive is not material when there is direct evidence of acts of the accused and the acts themselves