^ A-F-& HIGH COURT OF CHHATTISQARH AT BILASPUR Criminal Appeal No.2159/2000 Santosh Sharma Vs. State of Chhattisgarh Judgment for considerati<an Sd/- J O D G E g-11-2006 Hon'ble Shri Justice^L.C^ShadoQ Sd/- L.C. Bhadoo Judge v^. ^^ Postfor '-11-2006 Sd/- V.K. Shrivatava Judge HIGH COURT Of? CKHATTISGARH AT BILASPUR (Dwision Bench) Coram: Hon'ble Shri L.C. Bhadoo & Hon'ble Shri V.K. Shrivastava, JJ Criminal ApDealNo. 2189/2000 APPELLANT Santosh Sharma aged 33 yeare, s/o. Devcharan Sharma, resident of Kharod Thana Shivrirmrayan, Tahsil Janjgir, Dist. Janjslr Champa (CG). Versus RESPONDENT State of Chhattisgarh, ttirough the Dist. Magisfrate Janjgjr, Dist. Janjgir Champa (CG). Present:- Smt Indira Tripathi, teamecl counsel for fte appellant. Shri G.D. Vaswani, learned Actelitional Public Prosecutor withShri D.C.Pande, learned Panel Lawyer fortheState. JUDGMENT (Delivered on ^ November, 2006) The following judgment of the Court was delivered by \^jay Kumar Shrivastava,J. The Additional Sesstons Judge, Janjgir, Sessions DMsfon BUaspur, found the appellant—Santosh Sharma guijfy of the offence punishsd>te uncter Section 302 of the Indian Penal Code. The appellant was sentenced to undergo imprisonment for life with fine and defautt stipula^on vide judgment of conviction and order of sentence dated 25/07/2000 passed in Sessions Trial No. 270/98. 2) Prosecution version as unfolded during frlat, in brief, is thsrt the appellant is nephew of Chudamani Sharma and Chudamani Sharma is fattier-in-law of Virendra Kun^ir. Appetlant had an eye over ttie property of Chudamani Sharma. Virendhra Kumar after his mamage used to visit 1^\ ^: hts in-law's house off and on, therefore, appellant suspected ttisrt Chudamani Sharma would give his property to Vtpendra Kumar, therefore, appellant was keeping animosity with Virwdra Kymarand his family members. In 1997 appellant assautted Virendra Kumar w^io reported the matter to Potice. Ku. Sarfta Mishra (since deceased) youngersister of Vfrendra Kumar on 12/04/1998 wentto Kausadl pond to take bath. When she was bs^iing appellant carrying a battte-axe csume there and attackedKu. Sarita Mishra. He gave severari blows on Ku. Sarita Mishra by ttiat battle-axe.Ku. Sarita Mishra received severe injuries on her body and instentaneously died on the spot. Appetlant ader getting ttie battte axe washwd fled away from there. 3) Vijay Kumar Mishra another kN-olher of dec^ised Saritei Mishra was informed by Santosh Pandey and Santosh Mishra that appellant killed his sister Ku. Sartta Mishra, therefore, he wentto Uie pla;e d! occurreroe and saw his sister Sarita Mishra who was dead having seveFal injuries on her head, neck and other parte of the body and blood wss oozing from those injuries. He wentto ttie Police Station: Shivrinarayan, todged merg intimation and first information report. N. Khais Sub-lnspector of Police recorded merg intimation and first information report and rushed toplace of occurrence to conduet the inquest. He after serving nolfee to witness^ and in presence ofthose witnesses conctucted inquest, prepared inquest report and forwarded the dead body of Sarita MSshra for autopsy to Government hospital, Shivrinarayan. From the place of oecurrenw he collected blood stained earth, ptain earth, skull hair and one Motimate belonging to Sarita Mishra and seized atl those articles. He recovered one battle axe and one small towel from the possession of tiie appellant H@ recorded the statements of witnesses under Section 161 of the Cr.P.C. s&^^^^s^.^^^ .^^.^^^ ;0. 4) Dr.N. Prasad and Dr. R.S. Prabhakar conducted autopsy. They found fifteen injuries on her body and op'ined that th®cause of <te^:h was coma due to brain hemorrhageand skull fracture and deathwas tomfeictal in nature. They described all Itioseinjuries in their report, coltected blood steined ctothes and ornamente ofthe doceased andalong wltti those, sent their report to Police Station. Spot map was prepared by Patwart. The batUe axe recovered from the possession of ttt@ appeNant was sent to medlcal ofRcer for examination and opinton. Dr. M. Prasact examlned the battte axeand opined that the injuries foundon the body of the deceased Ku. Sarita Mishra could havebeen caused by ttie^ized weapon. Allthe artictes recovered and seized were sent to Forensic Science Laboratory, Sagar for examination from where anatysis report has been receiveet. After completion of investigation charge sheet was led in ttie Court crf Judicial Magistrate First Class, Janjgir who committed the case to tt'ie Court of Sessions for trial. 5) Triat Court, framed charge under Section 302 ofthe I.P.C. against the appellant, the same was read over and e)q>tained to himwho abjyred the guilt. It appears that apart from innocence, appellant also pteacted defence of Insanity. 6) Learned frial Court relying on mwlica^ evidence of Dr. N. Prasad (RW/5), Dr. R.S. Prabhakar (PW/6) held that the death of Sarita lUKshra was caused by inflictir^ various injuries on her body witti iron battle axe and placing reliance on eye-witnesses Vishwanath (PW/2), Chandrite Bai (PW/3), Dinesh Kuamar Yadav (R/V/4), Ku. Sushila <RA//8) and Rajendra Kumar Sharma (PW/9) held that the appellant attacked andassaulted Ku. Sarita Mtshra with a battle axe and caused her death. Leamed Nal Court after appreciating ttie evidenceon recorddid notacceptthe defenceoythe appellant that when the incident took place, appellant was sufferingfrom 4 <- unsoundness of mind and his act falls within the exception as envisaged under Section 84 of the IPC. Learned frial Court holding the appellant guilty for committing offence punishable under Section 302 of the IPC, convicted and sentenced him. 7) Appellant did not dispute the ante mortem injuries found on the body of deceased Sarita Mishra and her death to be homteidal in nature. Even otherwise, from the statements of Dr.N. Prasad (R/V/5) and Dr. R.S. Prabhakar (PW/6) and autopsy report (Ex.P/4) proved by both these witnesses, it was established that Sarita Mishra sustained following injuries and succumbed to those. Cause of her death was coma due to brain hemorrhage and skull fracture. 1) Lacerated wound with evulsion of skuil over occipital and parietal junction area in the size of 15 x 8 cm, fractured parietal bone seen ttirough the wound. 2) Lacerated wound scalp right side of occipitat bone in the size of 5x2 cm fractured occipitat bone seen thfough the wound. 3) 4) 5) 6) 7) tncised wound left side of occipital bone in the size of 6 x 2 cm fractured line seen and felt through ttw wound on palpation. Incised wound left temporal region in the size of5x 1 x % c.m. Incised wound in the size of 3 x K cm x % cm lateral side of left eye. Incised wound in the size of2 x %x % cm above left eye. Incisedwound inttiesize of2 cm x % x%cm beiowteft eye. ^ 8) Incised wound left side of neck betow left ear horizorrially placed in the size of3x1 x 1 cm. 9) Incised jaw wound in the size of 2 cm x 1 cmx % cm above teft lateral to nose. 10) Incised wound midfrontat regton in the steeofSx 1 cm x 14cm. 11) Incised wound lateral side of right eye in the size of 2 x 1 cm x 1 cm. 12) Incised wound elbow joint lateral aspect obUquety friaced in the size of 5 x 3 cm fracture of upper 1/3rd of radius. 13) Left hand incised wound in the SVSB of 6 x 3 cm bony deep fracture. 14) 5th metacarpai shaft incised wound lateral arm posterior aspect in the slze of 5 x 2x2 cm. 15) Incised wound left posterior side of chest in the size of 2 x % x % cm. 8) The incident has beenwjtnessed by Vishwanath (PW^), Chandril® Bai (R/V/3), Dinesh Kuamar Yadav (RA//4), Ku. Sushila <PW/8) and Rajendra Kumar Sharma (PW/9). Vishwanath (RA//2) in his statemwt has categorically deposed that he heard "Bachav BaehaV, the soundwas coming from battiing ptace (Barghat) of tiie pond, when he saw he found that the appeflant was assaufting Ku. Sarita Mishra wth iron battte axe (Pharsa) as a result of which she fell down into water. Appetlant did not stop, but conttnued assaulting her. Chandrika Ba& (PW/3) has depo^d in her statement Ihat appellant pushed Sarita Mishra into water and started assaulting her with a batUe axe. Sarita Mishra raised alarm "Bachav BachaV. Appellant after assautting her fled away from the ptace of occurrence. Dinesh Kumar Yadav (PW/4) in his statement has deposed Cs^ 6 that he heard 'Bachav Bachav", therefore, he went on bed of the pond and saw that appellant was assaulting Sarfta Mlshra with Tabbal. Sarita Mishra receh/ing injuries fell down inside the wateT. Ku. SushUa (PW/8) in her stetement has deposed that Sarlta Mishra was tarfdng balti tn pond, appellant came ttiere, pi^hed her instde the water and assautted herwlth Pharsa (battle axe). Rajendra Kumar Sharma (PW^9) in his statement has deposed thatSarite Mishrawas vrashing herclotties, appellant came, pushed her inside the water and assaulted her wth Pharsa. AJt these vntnesses have been cross-examined at tength. Except mtnor discrepancies and minor contradictions thatwasnatufat, nothing has been brought on record. After minute appreciation oftm stateraents crf all thes® witnesses, we are ofthe opinion that in cross examinalion noUiing raaterial has been elicited which may tead their statemerrts unfrus^vorthy or impeachable even they have no grudge to falsely imptlcate the appellant in thecrime. 9) From the statements of Doriwal (FW/10), Mutainda (PW/12) and N. Khais (PW/15), ithas been proved that appetlantwas found witti a battte axe and from his possession battie axe was seized. The seizure memo ts Ex,.P/8. From the statements of N. Khais (PW/15) and Dr. N. Prasad (PW/5), it has been proved that ttie se^ed batUe axe was sent for medical examination and Dr. N. Prasad (PW/5) on examinatfono^ned that the injuries found on the body of Sarita Mishra could have been caused bythe seized battte axe. First infonnation report is Ex.P/1 andMerg inttmsrtion is Ex.P^Z. Both these documents have been proved by Vijay Kumar Mishra (PW/1) and N. Khais (PW/15). Soonafterthe incidentboth th^e reports have been lodged alleging invoh/ement of ttie appellant in ttie crime. 10) Ocular ewdence which itself is unimp^iciiaMe is duly corroboratMl witti recovery of weapon from ttie possession of the app^lant aral meig ^. intimation as well as first information report. Therefore, retying on the statements of eye-witnesses duly corroborated with merg intimation ^rst information report, medical evidence and recovery of weapon, we are ©f the considered opinion that the appellant with a battle axe causing many injuries on the body of Sarita Mishra who was unarmed and undefended woman caused her death. 11) Virendra Kumar (PW/13) in his statement has deposed that the appellant is nephew of Chudamani Sharma. Appetlant had an eye over the property of Chudamani Sharma, but when after his mamage he started visiting his in-law's house off and on, appellant suspected that Chudamani Sharma would give his property to him (Virendra Kumar), therefore, appellant started keeping animosity with him and hls family members and as a result of that in 1997 appellant atso assaulted him. Ku. Sarita Mishra is his younger sister. Nothing has been elicited in his cross-examination so as to discredit his statement. Therefore, from his statement, this much has been brought on record that appellant had animosity with Vidrendra Kumar and his family members and that may be a motive for the murder of Sarita Mishra. 12) Leamed counsel for the appellant vehemently argued that e appeltant is entitled for protection under Section 84 of th@ IPC as he was suffering from Paranoid Schizophrenia and because of the disease he was a man of unsound mind and by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was e'rther wrong or contrary to law. Learned counsel for ftie appellant ptaced her reliance on the judgment rendered by Hon'bte the Apex Court in Dahyabhai Vs. State ofGujarat, reported fn AIR f964 SC 1563 (V51C 210) and judgment rendered by Hon'ble the Bombay High Court in Govind Ramchandra Jadhav Vs. State of Maharashtra, reported in 8 (^s- <_, 1996 Criminal Law Journal 4186. On the contrary, tearned counsel for ttie State argued that at the time of occurrence appetlant was not suffering from unsoundness of mind, therefore, he was not entified for any protectjon under Section 84 of the IPC. 13) Section 84 of the IPC reads as below" "Secffon 84. Act of a person unsound mlnd. Nothing is an offence which is done by a person who, at ttie Sme of doing it, by /easoo of unsouiK^iess of mind, is inwpable of knawing ^Tenaiure af the acf, or that he is doing whatis wffwr wfong orcon^ary to tow" 14) With regard to insanity, every person is presumed to b@ sane, until the contrary is proved and to establish the defence of insanity it must be cleariy proved that at the time of committing the offence the accused was labouring under such a defect of mind that he was unable to know the nature and quality of the act, that was done by him and to bring his case under exception of Section 84 of the IPC, Iw is bound to prove the existence of circumstanGes bringing his case within exception as envisaged under Section 84 of ttie IPC, and the provisions centained in Section 105 with illustration (a) of the Evidence Act which is reproduced below are attracted in such cases. "Secfi'on fOS. Burden of proving tffat case of accused comes wittiin exceptlons." When a perso/? is accused of any offence, ffie burden of prowng ^e existence of circumstances bringing the case wiffvn any of the General ExcepGons in tiw /ndfan Penal Cocte, 1860 (45 of 1860} or within any speciaf exceptton or provsao contained in any other part of ffiie same Code, or 'm any law deRning ISw offence, is uposi him, and the Court shaV pfesume the absence of such cifcumstances. IHusfons (a) A, accused of muvter, alteges ttiat, by mawsn of un^>umSne3s of mind, he cfcf nat knaw 1h@ natufe offfw act The burden ofpmofis on A (fs^ 15) Hon'ble the Apex Court rendering judgment 'm Dahyabhaf (supra) dealt with the provisions contained in Section 84 of the IPC and Section 105 ofthe Evidence Act and held as below: "©Penal Cocte (1860) S.84- Pfea ofinsanity- Proof- CircumstaiK^s v^iich preceded, attenctedand follawed ffte crime to be consfdefed. When a plea of legal inssuiity is set up, the Court has to conskler whether at the ffme of commission of the offence ffie accused, by reason of unsowvdness of mind, was incapabie of kncwing the nature of ihe act or tat he was doing w^iat was eiffier wfong or con^rary to law. The crudal pdnt of ffme fbr ascerteining the state of mind of ffye accused is ffw time when ^?e offence was coinmiited. Whether ff?e acci/sed was w sucft a sifate of mind astobe enffffed to ffre benefit of S.84 of the Penal Cocte can orr/y be established fiwn ffvs ciivumstances which pieceded, attended and fo/towecf ffie crime. (e) Penal Code (1860) S.84- Ptea of insanity - Proof - Acwsed giving many stabs to lall unarmed and yndefenctec/ woman. Manysane mengive more ffsan the iwcessary s^abs to their victifns. The number of blaws gwen might periiaps reflect his vengeful mood w his detem»naik>n to see that ffvs vicSm had no escape. One etoes not count his strokes Iw cxsmmits muKter. This ctoes not necessarily prove that fhe accysecf was dbing Vhe act uncter some hallucsnatfon. (g) Evidence Act (1872) Ss. 101, 105, 4 - Case of homickle - Piea ofinsanity- Burden ofproof- (S) A)R 1956 Nag 1870venvled. It is fundamental prindple of cnmina^ jurispnfdence ttiat an accused is presumed to be mncwsnt and, ff)erefofe, the bwden lies on the prosecuSon to prove ffie gwK of fft®accused beywid reasonabte doubt The prosecutiwi ^ierefwe, snacase of homicide shali p/ov®beyond reasonab/e dby&^ ff?af ffie accused caused death wiffi the requisite mten^on described in S.299 of ffiie Penal Cocte. This geneml buKten never shffts and it ahways reste on tlw prosecutton. But, under S.105 of the Evidence Aci the burden of pi'oving ffte existence of ciivumsterwes bringing ffie case wffiiin ttTe exceptiwi Ses w (fte sccused; and the cx>ufi shafl presume the a&sence of such circumstsuices. Under S. 105 of ffiie Evktence Act, read wih Vhe defins^n of "shall presume" S.4 ^reof the Couri shalf regafd the absence of such cirwmstances as proved uniess, after considering the maiters before it, it beKeves Ibarf Ihe '•7j 10 circumstances existed or ffi)eir existence was so probable ffvat a prudent man ought, under ffw ciivumstancesofthe particular case, to est upon the supposition that they cSd exrsfc To p(^ rf OT otftervmrds, the accused wifl have to rebut the piesumptton ihat such circumsfances cSd not exist, by plaeing matenal befwe the court wfficient to make it conwter ffie existence of the sakl circumstances so probetote ffiiat a prudent man woukl act upon them. The accused has fo saffsfy the standard of a "pn/cfen^ man". If ffte material placed before Vhe Court, such as, oral and documwriary evktenoe, pfesumpSons, adrmssk»ns or even the prosecution ewdence, satisfies Vhe test of "prudent man", the accused will have cSschaiged hfs burdwi. The ewdence so plaoed cSschafged may net be sufRcient to discharge the burcSen under S. 105 of the Evktence Act but it may faise a reawsnable doubt in ffiie mind of a judge as regards one or ottwr ofthe necessary ingfecSents of the offence Stself. !t may, for fnstance,rsaise a feasonoble ctoubt in the mind e^the jud^ wheffier ffte accused had ffw wquwte intenffon laiddawn in S.299 of the Penal Cocte. If thejudge has such reasona^te dwbt, he has fc> acquit ihe accused, for in that eveni the prosecutkxi will have faited to prove concluavely ffw guilt of the accused. The docWne of burden ofpfoof in ffiie context of fhe pteaof insanity may be sfetecf in ffie folkwing proposiffons: (1) the pfosecutksn must prove beyond reasonablecbubt )at ttie accused Iwd commltfsd ffiie offence wff) the requi^te mens rea; and the buydbn of pny/ing that always rests on ffiie prosecufen fro/n the beginning to the end of tbe triaf, (2) There is a fQbiittable presumption Vhai ihea«xusedwasnoi insane, when he committed the crime, In the sense tsad dawn by S.84 of ihe Penaf Cocte: e accused may re&irf ^ &y ptedng before ttie court all ffife f^evant ewctence - oral, dcwumwitaiy or circumstanSal, but se burden ofpRwf upon Ivm is no higher than thatrests upon a party fo CM/ proceecSngs; (3) Even if fhe sccused was not able to estabiish conciusively that he was insane at the ffme he commi^d ff?e offisnce, fhe evfetence p/sced teftwe ihe couri by the accusecf or by the prowcutton may ra/se a reasonabte ^ubt in ffiie rwnd of fffe court as regards one or more of ttye ingredients of ffwoffence, incltKSing mwis rea ofthe accused and inthatcase ffite court woyjSrf be entiiled to acquii ffie acwsed on the ground ffiat the general btiivten of proof restii^) on the pwsecuSon wss notdischar^d/9 16) The judgment rendered by Bombay High Court in Gowind Ramchandra Jadhav (supra), it has been held (hat accused suffering from schizophrenia and prosecufion unabte to prove requisite means rea, 11 appellant acquires entitlement for the benefit of provisions of Section 84 of the IPC and becomes enfitled for acquittal. 17) From the provisions of law and taw laid down bv Hon'bte the Apex Court. it is manifest that if pleaof insanitv has been raised. the Court has to eonsider whether at the time of commission of offenc®.the accused bv reason of unsoundness of mind vwis incaDable of knowina the n^ure of the act or that he was doina what was riaht or what was wrona. For ascertalnina the state of mind of the accused at the crucial point of time. circumstances preceded attended and fotlowed are reauired to be considered. Iffrom the material placed before the Court. the existence of said circumsteinces was so probabte that a prudent man ouaht. under the circumstences of the particular case. to act. the burden placed on accused for takina benefit of exception of Section 84 of the IPC stands discharaed. 18) It is pertinent to mention that even if the evidence placed on record isnotsufficienttodischara Act. but mav raise a reasonable doubt in the mind of iudae as reaards one or other necessarv inaredients ofthe offence jncludina the mens rea of the accused. the accused became entttled for acauittal. 19) Following passage from article on "The sym^oms of schizophrenia" available in intemet at website httD://www.Dsvchiatrv24x7.com/badisDlav.ihtmJ?itemnames»schEODhrenJa_ symptoms&p... (accessed on 10/29/2006) wilt s^sist in appreciating the plea of insanrty taken by the appellant. "The symptoms of schizof^fBnia usualty va/y over time. They WOTSW) during periods of retepse and improve during periods of femisskyi. Some peopte 12 have only one psycherisfc efvsode; ottwrs ©xperiewe many qwsoctes, but lead pelalsvQly nwmad Sves in betwewi episodes andappear enmScma^ heaShy and stable. Hawever, peopte w'^i chrwiks scNzophnenia, or continuous or recurring symptoms, usualty do not recover fulfy. They reqwie IwTg-temi ^eatment, wlvch tencte to include relaSves and friencfe te contivi the svmotoms. The media ffequenQy Snk nwntal illness with vk^ent behawour. Hcwever, unfess ff»y displayed wotent behavsour before the onset of their iflnws or have substance abuse or alcahol probtems. peopte wiffii schlzophrenia are not really prone to wotent behawour. Most indiwduals w ) schizoptiienia QVB not vwtent at a//, but tend to be withdrawn andl prefer to be teft alone." 20) In the cross examination of Vijay Kumar Mishra (PW/1), it is clear that instead of suggesting a ptea of insanity, appellarrt took a defence of animosity. In cross examination of Vishwanatti (PW/2), Chandrika Bal (RA//3),Dinesh Kumar Yadav (PW/4), appetlant did not take ttie defence of 'msanify. For the first time on 24/04/2000 when the witness Ku. Sushita was adduced in evidence, during her cross-examination, plea of insanity was introduced. In cross-examination Ku. Sushila (PW/8) stated thal before incidenttook place appeltanfs behaviour was mad type, therefore, he steirted moving here and there carrying a battle axe. Rajendra Kumar Sharma (PW/9) in his cross examination has aecepted that since 10-15 days before the date of incident appellant carrying a battte axe was Mvandering. Mukund (RA//12) also accepted in cross examination that before 10-15 days from Ihe date of incident appeltant was carrying a battle axe and whenever he went to take bath h©was keeping the batto 13 axe. From the above stetement, iftaken to be true, only this cireumstance has been brought before the Court that earlier to the date of incident appellant carrying a battle axe was taking round in the village. It is not an unusuai behaviour, which may tead to suggest that appeltant was under the influence of unsoundness of his mind. 21) Dr. Prakash Narayan Shukla (DW/1) in his statement deposed that appellant was suffering from Paranoid Schizophrenia, for the first time for treatment he was brought before him on 16/07/1992 and for the last time he was brought before him on 25/03/1997. In cross examination he has steted that he is unable to state the mental condition of the appellant after 25/03/1997. Incident took place on 12/04/1998 and this witness has examined the appellant before a year, therefore, from his statement on the date of occurrence what was the state of mind of the appellant cannot be ascertained. From the statement of another witness DW/2 Chedilal, it is clear that he never saw the appellant doing any wrong, he never saw the appellant quarrelling with any one and he never saw the appellant murmuring, abusing or shouting against any one. 22) Appellant was arrested on 12/04/1998, but at that time, he did not teke plea of insanity. From the record of trial Court, it is evident that when he was produced before the Court he made request for adjoumment for appointing an advocate for his defence. When charge was framed and explained to him, he abjured the guilt. On 16/08/1999 he filed an apptication for proper tareatment complaining Sncrease of his heart rate and shivering of his body. Even by that time appellant did not disdose the fact that he was suffering from Paranoid SGhizophrerua or any other mental disease. 14 '/ ;^ 23) From the judgment of the triat Court in para 38, ft is ateo clear ttiat on appellant's complatntttiathe wassuffering from mental