HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 333 of 2006 Reserved on: 24.4.2009 Decided on: 25.5.2009 Joginder Kumar ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.Dharamvir Sharma, Advocate. For the respondent: Mr.Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja, J.: This is an appeal filed by the appellant through jail against the judgment, dated 28.9.2006, of the court of ld. Sessions Judge, Chamba, vide which the appellant was held guilty under Sections 302 and 506 of the Indian Penal Code and was convicted and sentenced as under: Under Section 302 IPC: Imprisonment for life and to pay a fine of Rs.10,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of two years. Under Section 506 IPC: Rigorous imprisonment for one year. Both the sentences were to run concurrently. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. The prosecution story in brief is that on 6.2.2004, at about 12.05 p.m., a telephonic message was received at Police Station, Sadar, Chamba from one Manjit Kumar that one Joginder Kumar has murdered his son and further proceedings be conducted in this regard. This information was entered in rapat rojnamcha No.9, dated 6.2.2004, by the Inspector/SHO Khub Ram, who proceeded to the spot alongwith other police officials. He reached the spot and recorded the statement of one Smt.Guddi Devi under Section 154 of the Cr.P.C. at 1.30 p.m. In the said statement, the complainant had alleged that she remains in her house alongwith her husband Manjit Kumar and Joginder Kumar, the elder brother of her husband, who also lives in the same house but they are living separate in 2-room sets and are having separate kitchens, but these are adjacent to one another. She alleged that her Jeth Joginder Kumar (accused) has got two sons, the elder one is named Rohit Kumar aged 4-1/2 years and the younger one is Abhishek, who is aged about 2 years. She further stated that today in the morning at about 11.45 a.m., she was sitting in the courtyard, basking in the Sun and her son Ajay Kumar aged 3 years was also sitting with her. Her husband Manjit Kumar had gone to the shop to make purchases and her Jethani Achhroo Devi, wife of accused Joginder Kumar, had gone to some person’s house for work. Her Jeth Joginder Kumar was sitting in the courtyard and his two sons were playing there. She further stated that her Jeth Joginder Kumar got up, went to the kitchen and his minor son Abhishek followed him to the kitchen and Joginder Kumar picked up a drat lying in the kitchen and gave a blow on the neck of his son Abhishek, who was present in the kitchen. Abhishek fell down, Joginder Kumar came outside the kitchen and told her that he has killed his son Abhishek with drat and if she told this fact to any person, he will kill her and her family. She further stated that she was pregnant and with great difficulty she ook her son Ajay Kumar and her Jeth’s son Rohit to the house of her neighbour Pan Raj and left both the children there and went to the shop and informed her husband about the occurrence, who gave a telephonic call to the police who came to the spot and recorded her statement. Thus, the appellant stands charged for committing murder of his minor son Abhishek, aged about 2 years and for giving a threat to take the life of the complainant Smt.Guddi Devi. We have heard the learned counsel for the appellant and the learned Deputy Advocate General for the State and have gone through the record of the case thoroughly. The appellant had filed the present appeal through jail and, therefore, he was provided a counsel at state expense by the High Court Legal Aid Committee. The only submission made by the learned counsel appearing for the appellant was that the deceased was suffering from schizophrenia and as such he deserves lesser punishment than imprisonment for life, as awarded by the learned trial Court. He did not substantiate his plea if the appellant was suffering from schizophrenia at the time of commission of offence or at present or was found to be suffering from schizophrenia during the trial of the case. The learned counsel for the appellant persisted with his plea for lesser punishment for the appellant in view of the fact that he was suffering from schizophrenia even after he had been told that once the person is held guilty under Section 302 of the IPC, the Court has no discretion and it has to award either of the two sentences prescribed there, meaning thereby that either he can be sentenced for life or death sentence, but the court has no option to sentence him for lesser period than life imprisonment. We will firstly make a reference to the statements of the eye witnesses and other material witnesses so as to consider as to whether the guilt of the appellant was proved beyond any reasonable doubt or not. The first witness is PW-1 Guddi Devi, on whose statement under Section 154 of the Cr.P.C., the case was registered by the police. In her statement as PW-1, she has reiterated the version given by her in her statement under Section 154 of the Cr.P.C. to the police that she was present in the courtyard and both sons of the appellant, namely, Rohit aged 4 years and Abhishek aged 2 years, were playing at about 11.30 a.m. or 11.45 a.m. in the courtyard of their house. She further stated that her husband and the appellant were residing in separate rooms of their ancestral house. She was sitting in the courtyard, the accused was also sitting there and in the meantime, the accused entered into his kitchen and his son Abhishek also followed him in the kitchen where a drat was lying. The accused made blows of drat on the person of Abhishek on his neck, as a result of which, Abhishek fell on the ground and blood came out from his neck and spread over the floor of the kitchen and thereafter, her husband Manjit informed the police telephonically. She further stated that Achhroo Devi, wife of accused, had already left her house and was working as a maid at Bhadram. She sent her sister Kanta to the house of the Master to inform Achhroo Devi about the incident. After some time, Kanta and Achhroo came to the spot. The police came and recorded her statement Ext.PA. She further stated that the police inspected the spot, took into possession the drat Ext.P-2 on her identification vide recovery memo Ext.PB, which bears her signatures. PW-1 Smt.Guddi Devi, in her cross examination, has stated that her sister Kanta was also present in the house and was sitting with her in the courtyard. The kitchen of the accused is at a distance of 10 yards from the courtyard where she was sitting. She admitted that from courtyard, the inside portion of kitchen is not visible. She stated that the police reached the spot after about 1/2 hour and she took about two minutes to call her husband from the nearby shop to whom she narrated the incident. The only suggestion put to her was that her husband was not having good terms with the accused. However, she stated that the accused used to quarrel only after having liquor, otherwise he never quarreled with them. She denied the suggestion that while running, Abhishek fell on the drat and sustained the injuries. She denied the suggestion that the accused was a psychiatric and was suffering from fits. She denied that the accused had not killed his son Abhishek. Nothing was extracted from her cross examination to show that she had any reason to falsely depose against the accused, who was her real Jeth. PW-4 Kanta Devi, sister of PW-1 Guddi Devi, has stated that since her sister was pregnant, she had come to the house of her sister to help her and her presence at the spot appears to be natural. She stated that at about 11.30 a.m., she was present in the house and the accused was also present, who went to the kitchen and Abhishek followed him to the kitchen. The accused gave a drat blow on the neck of Abhishek, who fell on the floor of the kitchen and blood came out from the wound and it spread over the floor. Thereafter, the accused threatened her sister Guddi Devi that she should not disclose this incident to anyone otherwise she would be done to death. Her sister Guddi Devi went to inform her husband, while Guddi asked her to inform the wife of accused, namely, Achhroo Devi. She went and informed Achhroo Devi. She had also identified the drat Ext.P-2 with which the accused had killed Abhishek. She admitted that at the place where she was sitting, the inside portion of the kitchen was not visible. Nothing could be extracted from her cross examination to show that she was not present at the spot or had not witnessed the occurrence or was deposing falsely for any reason. The next material witness is PW-2 Manjit Kumar, the husband of the complainant Guddi Dvi, who was informed about the incident by PW-1 Guddi Devi when he was present in the shop to make some purchases. He clearly stated that his wife came, told him that the accused was killing Abhishek so he should rush to the house and when he went there, he found that Abhishek was lying inside the kitchen and the drat was kept in the wooden box lying in the kitchen and blood had spread over the floor. He informed the police telephonically who came to the spot and recorded the statement of his wife Guddi Devi. He also identified the drat Ext.P-2. He denied the suggestion that he was not on good terms with his brother. He admitted that his brother was suffering from fits whenever he used to take drinks. He also admitted that the accused became abnormal under the fits after taking liquor. He also admitted that his brother was not in a position to understand his good or bad deeds. However, his cross examination does not show that he was not informed by his wife or was not present at the shop or he had any enmity to falsely depose against his brother. PW-5 Achhroo Devi is the wife of accused Joginder Kumar, who had gone to attend domestic work as maid at 10.30 a.m. She stated that her husband was present there in the house alongwith children when she left for village Bhadram. She has stated that Kanta Devi is the younger sister of Guddi, who was also present in the house on that day. She further stated that Kanta Devi came to call her at about 11-12 noon and took her to her house and informed her that her son Abhishek had been killed by her husband and on this she became unconscious. Apart from the above, the prosecution had examined PW-3 Gurdev Singh, Pradhan of the Gram Panchayat, who was joined during the investigation. He stated that the police took into possession the blood from the floor and sealed it in the parcel Ext.P-3, vide recovery memo which was signed by him and Ward Panch Salochana Devi. He also stated that drat Ext.P-2 was identified by Smt.Guddi, which was also taken into possession vide memo Ext.PB, which was also signed by him as well as by Salochana, Ward Panch, who has not been examined by the prosecution. The blood in a sealed parcel was taken into possession vide memo Ext.PW-3/B, which bears their signatures. He also stated that the clothes of the accused were taken into possession vide recovery memo which bears his signatures as well as that of Salochana Devi. He has identified the pants, jacket and shoes of the accused taken into possession vide memo Ext.PW-3/C. The post mortem on the dead body of Abhishek was conducted by PW-7 Dr.S.K. Mahajan, Medical Officer, on receipt of application Ext.PW-7/A from the police. He conducted the post mortem on 7.2.2004 at 10.30 a.m. He stated that there was history of causing chopped wound by the father of Abhishek on the neck of Abhishek on 6.2.2004, at 11.45 a.m. The doctor observed as under: “There was incised chopped wound around the right side of neck extending from middle of back of backside neck to front of neck in the middle margins regular. Head is attached with thorax only at the left side of the neck. All major vessles vertibrage, phyranax spinal cord, larynx vessels muscle are excised and separated. 4th cervical vertebra excised in the middle. Spinal cod excised at the level of 4th cervical vertibra.” The doctor opined that the deceased died as a result of chopped wound neck leading to injury to spinal cord and major vessels, shock and death. The probable time i.e. between injury and death was instantaneous and between death and post mortem was opined 12 to 36 hours. The doctor issued post mortem report Ext.PW-7/B, which is in his hand and bears his signatures. He also stated that the injury sustained by Abhishek can be caused with drat Ext.P-2. The mere fact that he admitted the suggestion that the injury mentioned is possible if a sharp edged weapon like Ext.P-2 is fixed on the floor and a child falls on this drat from a height with great force, is not sufficient to hold that the injury in question was caused in this manner. There was no suggestion to any of the witnesses that the deceased Abhishek had fallen on a drat fixed on the ground with great force. Therefore, this admission made by the Medical Officer is not sufficient to hold that the injury had been caused in this manner. The investigation of the case was conducted by PW-15 Inspector/SHO Khub Ram, who went to the spot and investigated the case. He has proved the photographs and the negatives which were taken at the spot. He filled the inquest report, inspected the spot, prepared the site plan Ext.PW-15/A, took into possession the blood lying at the spot and the drat lying on the wooden box kept in the kitchen and prepared the recovery memos of drat, blood and the clothes of the accused at the spot in the presence of witness Guddi. He identified the clothes of the deceased as well as the drat and completed the investigation. On appraisal of the above evidence led by the prosecution, it is clear that at the time of occurrence, PW-1 Guddi Devi and her sister PW-4 Kanta Devi were present in the common courtyard of Manjit Kumar, brother of the accused, and of accused. The children, including the deceased Abhishek, were playing. Both the witnesses, i.e. PW-1 Guddi Devi and PW-4 Kanta Devi, had clearly seen the accused going inside the kitchen followed by his minor son Abhishek, aged 2 years, and had also stated that the blow with drat was given in the kitchen by the accused and the accused after that kept the drat in a wooden box in the kitchen. The accused came out and also gave a threat to PW-1 Smt.Guddi Devi not to disclose this occurrence to any person, which fact was duly corroborated by her sister PW-4 Kanta Devi. We have gone through the statements of these witnesses and other witnesses very carefully and we do not find any infirmity in their statements or material contractions to hold that their statements cannot be relied upon. Nothing was brought on record in their statements to show that they have deposed falsely or they have any enmity with the accused to falsely implicate him. There is nothing on the record to show that any other person had come to the spot or gone to the kitchen and inflicted the injury and there were no specific suggestion that the deceased had fallen on the drat lying on the ground from a height with sufficient force. Therefore, on appraisal of the evidence led by the prosecution, duly corroborated by medical evidence in regard to the cause of death, we have no hesitation to agree with the findings recorded by the learned trial Court that the accused had committed the murder of his minor son Abhishek, aged about 2 years, with a drat. During the course of arguments, we were looking to the evidence if the prosecution had tried to prove the motive of the murder, though it was not necessary for the prosecution to prove the motive for murder, yet in case it was proved, it could be used as an additional circumstance as against the appellant. On appraisal of the judgment of the learned trial Court, it is clear that no specific motive has been stated by any of the witnesses. We have gone through the judgment of the learned trial Court and it appears that at page 17 of the judgment, the learned trial Court had discussed this point since a plea was raised before it that there was no intention of the accused to kill his son. The learned trial Court observed that it has come on record that the accused had doubted the character of his wife and that Abhishek was not his son. A reference was made to the testimony of PW-5 Achhroo Devi, wife of the accused, who admitted the suggestion that the accused never disclosed before her that Abhishek was not his son earlier to this incident, though she has stated in her examination-in-chief that when she came, accused had disclosed before the police that Abhishek was not his son, as such, he had killed him. She stated in here cross examination that her husband never doubted the parentage of his son Abhishek and also that her husband did not doubt her chastity. We cannot take this ground as an additional circumstance as against the appellant since the motive has not been proved from the evidence, though the possibility cannot be ruled out that this may be the reason for the accused having killed his minor son. During the course of arguments, as mentioned above, no such plea was ever taken by the learned counsel for the appellant that the accused was suffering from schizophrenia at the time of commission of the offence or that he committed this murder when he was suffering from fit of schizophrenia. However, this plea was taken before the learned trial Court which had observed in paragraphs 36 and 37 of the judgment that there is no such medical evidence on record to prove that the accused was suffering from any mental disorder i.e. schizophrenia at the time of commission of the offence or even thereafter while facing the trial. To satisfy our conscience that if such a plea was raised during the investigation of the case or during the trial of the case, we had gone through the record of the case thoroughly and found that no such plea was raised during the investigation of the case or during the trial of the case that the accused was suffering from schizophrenia except some few suggestions made to the witnesses in this regard which have been discussed above. The mere suggestion in this regard were not sufficient to raise any doubt in the mind of the Court that the accused was suffering from schizophrenia in the absence of any such plea having been taken during the trial of the case or having been substantiated from any medical evidence. A perusal of the record of the case shows that during investigation of the case when the accused was produced before the court, the court observed that the accused was not replying to the questions put to him and since he had no counsel, a counsel on state expense was provided to him and the court observed that the accused is required to be examined by a Psychiatrist and he be taken to IGMC, Shimla for medical examination since there was no psychiatrist at Chamba or Dharamshala. It was also observed that the report be submitted as to whether the accused is suffering from some mental illness and if so, the record thereof. Such orders were passed by the learned CJM, Chamba on 30.4.2004 and thereafter, the report was submitted and it was mentioned that the relations of the accused should be called to provide information of treatment, if any, from any doctor given to the accused. Thereafter, the wife of the accused, namely, Achhroo Devi and brother of the accused Manjit Kumar appeared and they expressed their willingness to accompany the accused to IGMC, Shimla and thereafter they were sent to Shimla and at one time, the court observed that the accused may be admitted to some mental hospital and a reference was to be made accordingly to mental hospital Varanasi, but no such steps were taken and in the meanwhile medical treatment was given to the accused at IGMC, Shimla. Thereafter, the court had observed that according to the Superintendent (Jail), medicines are being given to the accused as prescribed from IGMC, Shimla, which were given to him for three months. The accused was again examined at IGMC, Shimla at different times. The treatment was given to him at IGMC, Shimla and the court observed that there was lot of improvement in the condition of the accused and he was again directed to be examined from a psychiatrist qua his fitness to face the trial. He also remained admitted in IGMC, Shimla and the court finally concluded that he was fit to face the trial keeping in view the medical evidence and the progress made and he was accordingly provided assistance of a counsel and then the case was committed to the court of the learned Sessions Judge, who tried the appellant. During the course of arguments, our attention was also drawn to a judgment of this Court in which one of us (Deepak Gupta, Judge) was also a member, given in Bihari Lal versus State of H.P., 2005 (Supp.) Cur.L.J.(H.P.) 10, in which this Court had discussed in detail the provisions of Section 84 of the IPC when such a plea was taken that the accused was of unsound mind. It was clearly observed that the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. It was held that this fact can only be established and determined from the circumstances which preceded, attended and followed the crime and in the absence of any material to discharge the burden of proof accused is presumed to be sane. It is a detailed ruling in which reference was made to various decisions in this regard and finally the above observations were made by the Division Bench of this Court. We have gone through the record of the case and it is clear that no such plea was ever taken specifically that the accused was suffering from schizophrenia at the time of commission of the offence or committed the murder in the state of some mental disorder. In case any such plea had been taken and any medical evidence led or other evidence in this regard had been produced on record, it could have been considered by the court and findings could have been given accordingly. In the absence of any specific plea or any medical evidence, the court was not required to give any such findings in the absence of evidence, but this plea was considered by the learned trial Court while deciding the case, which was raised during arguments. We have already mentioned above that the court of the learned CJM, Chamba, who committed the case, took various steps to send the accused