THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.928 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice K.C. Bhanu) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 18.04.2007, in Sessions Case No.769 of 2006 on the file of II Additional Sessions Judge, Jagtial, Karinmanagar, whereunder and whereby, the appellant/sole accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and accordingly, convicted and sentenced to undergo rigorous imprisonment for life. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is no other than the son of the deceased Bollarapu Lasmavva. PW.1 is the husband of the deceased. They were all residing in a house at Uppumadugu Village, Raikal Mandal, Karimnagar District. On 05.12.2005 at about 08:00 AM, while PW.1 was taking tea, the accused demanded his mother to cook chicken and his mother stated that she could not cook the chicken. Furious over the same, the accused picked up a cart peg from the nearby place and gave a blow on the head of the deceased. As a result, the deceased fell down with bleeding injuries. Immediately, she was shifted to the Government Hospital, Jagtial. While undergoing treatment, she succumbed to the injuries. PW.1 went to the Police Station and lodged Ex.P1 – report. PW.8 registered the case and sent the First Information Report to all concerned, including original First Information Report to Court concerned. PW.9 took up investigation and conducted inquest on the dead body of the deceased in the presence of PW.7 and others. Later, he visited the village and observed the scene of occurrence. After inquest, the dead body of the deceased was subjected to post-mortem examination by PW.5, who found a lacerated wound on the left parietal area of the head. On 06.12.2005, he arrested the accused and sent to the Court for remand. After receipt of relevant documents and completion of investigation, PW.9 filed charge sheet. 3. The trial Court framed the following charge against the accused: "That, on or about 05-12-2005, at about 08:00 AM, at Uppumadugu Village, you committed murder by intentionally causing the death of your mother, Bollarapu Lasmavva, by beating her with a cart peg indiscriminately on her head, left hand and stomach on the ground that she refused to prepare chicken curry for you, and that thereby you have committed an offence punishable under Section 302 I.P.C." When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined PWs.1 to 9 and got marked Exs.P1 to P7 besides case property M.O.1. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and no evidence either oral or documentary was adduced on his behalf. 6. The trial Court accepting the evidence of PWs.1 and 2, found the accused guilty of the offence punishable under Section 302 I.P.C. and accordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the accused for the offence punishable under Section 302 I.P.C beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel for the appellant contended that the presence of PWs.1 and 2 at the time of incident is doubtful, since they were residing in a room by the side of scene of occurrence, where the deceased and her son were staying; that the accused is suffering with unsoundness of mind; that because of unsoundness of mind, the incident had taken place; that father of accused himself admitted that the accused had taken treatment for his mental disorder in a mental hospital before the incident in question; that the accused had no intention to kill his mother; that upon a sudden quarrel, he picked up a cart peg and gave a single blow on the head of the deceased, which resulted in causing the fatal injury; and that therefore, he prays to set aside the impugned judgment. 9. On the other hand, learned counsel representing the learned Public Prosecutor contended that the evidence of PWs.1 and 2, who are father and junior paternal uncle of the accused respectively, would go to show that it is accused who beat the deceased with a cart peg on the head and because of the head injury, she died at about 10:15 AM, within two hours after the incident; that there is no evidence to show that the accused was actually suffering from mental insanity as on the date of commission of the offence; that in the absence of any evidence to prove that the accused is insane person, the trial Court rightly found him guilty and there are no grounds to interfere with the conviction and sentence recorded by the trial Court and hence, he prays to dismiss the Criminal Appeal. 10. There is no dispute about the scene of occurrence. PW.7, who is one of the mediators present at the time of conducting inquest over the dead body of the deceased, categorically stated that the dead body of the deceased was found lying in the house of the deceased and that the descriptive particulars of the scene of occurrence have been clearly mentioned in Ex.P5 - Crime Details Form and Ex.P6 - Rough Sketch of the scene of occurrence. They are not seriously disputed. 11. PW.5 is the doctor who conducted Autopsy on the dead body of the deceased and found a lacerated wound 2" x 1/2" x 1/4" on the left parietal area and bleeding from both ears. The injury is ante-mortem. On dissection, he found fracture on left temporal bone and of occipital bone and opined that the cause of death was due to head injury. Therefore, from the medical evidence coupled with the evidence of PW.1, homicidal nature of death of the deceased is established. 12. It is a case of matricide. PW.1 is the father of the accused. The deceased is no other than wife of PW.1. PWs.1 and 2 are the brothers. PW.2 is residing by the side of the house of the deceased and PW.1. PW.1 stated that on the date of the incident, while he was taking tea, at about 08:00 AM, the accused demanded the deceased to cook Chicken curry; the deceased refused to cook Chicken curry on that day; due to the same, the accused picked up a cart peg, MO.1, which was readily available and beat her on the head; as a result, the deceased sustained bleeding injury and died on the same day in Government Hospital, Jagtial. In view of the fact that the incident had taken place at about 08:00 AM, presence of PW.1 at the scene of occurrence is quite natural and probable. He was taking tea at that point of time and at that time, the accused asked his mother to cook Chicken curry. 13. PW.2, who is residing adjacent to the house of PW.1, rushed to the scene of occurrence and he also stated that at about 08:00 AM, when the deceased was cooking food, the accused demanded her to cook Mutton curry and as she failed to cook the same, the accused beat her with MO.1, and as a result, the deceased received bleeding injuries. If really PWs.1 and 2 have not witnessed the incident, they being the close relatives of the accused, would not have implicated the accused falsely. More so, PW.1, who is no other than father of accused, would not have testified against his son and involve him in a case of this nature. 14. No doubt, there is discrepancy with regard to the kind of the curry that was demanded by the accused to cook, but, at the same time, that would not be a ground to discredit the evidence of both witnesses. The genesis of the occurrence started when the accused asked his mother to cook a non-vegetarian food. Whether it is mutton or chicken, it makes no difference. Furthermore, within three hours after the incident, PW.1 lodged a report with PW.8. PW.8 has categorically stated that on 05.12.2005 at about 11:00 AM, he received Ex.P1 - complaint from PW.1 and basing on the same, he registered a case. The evidence of PW.8 remained unchallenged. 15. It is not the case of the accused that Ex.P1 was brought into existence after due deliberations. As seen from the recitals in Ex.P1, PW.1 has categorically stated that on the date of complaint at about 08:00 AM, while his wife was cooking, the accused demanded her to cook chicken curry and when she stated that there was no money to purchase chicken, how the chicken curry would be prepared, then he took up a cart peg and beat on the head of the deceased. Therefore, the earliest version as stated in Ex.P1, is completely in corroboration with the evidence of PW.1. Investigation commenced immediately after registration of case. Therefore, the recitals in Ex.P1 can be used to support the evidence of PW.1 under Section 157 of the Indian Evidence Act, 1872. 16. Further, PW.6, who is residing near the house of the accused, deposed that after hearing the cries from the house of the deceased at about 08:00 AM, he proceeded towards the house and he saw the accused running away from the scene of occurrence. From the evidence of PWs.1, 2 and 6, it is clearly established that it is the accused and noneelse, who is the assailant of the deceased. 17. Now it is to be seen whether the accused has committed the offence under insanity or unsoundness of mind. No doubt, whenever a plea has been taken by the accused, the burden is on him to establish the same. It must be pleaded and proved that he was suffering from insanity or unsoundness of mind at the time of commission of offence. He can prove the same by adducing necessary evidence, or by eliciting about insanity in the cross-examination of the prosecution witnesses. PW.1 has simply stated that before the incident on one occasion the accused was sent to Mental Hospital, Hyderabad, for treatment and at the time of giving evidence also the condition of the accused was not good. Even assuming the said statement is to be accepted as true, that is not enough to show that the accused was suffering with insanity as on the date of incident. A person is not responsible for criminal conduct, if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law under Section 84 I.P.C. On this aspect, it is pertinent to refer to a decision reported in Dahyabhai Chhanganbhai Thakkar v. State of Gujarat[1], wherein it is held thus: ““The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence – oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.”” From the above decision it is clear that it is at the time of offence the accused was incapable of knowing what is right and wrong and if it is proved about the insanity of accused, then it can be said that he was suffering from mental illness. Furthermore, there is a procedure contemplating under Cr.P.C. when an accused is actually suffering from unsoundness of mind. Therefore, in the absence of any evidence, it cannot be said that at the time of incident, the accused was incapable of knowing what is right or what is wrong and committed the act, which is punishable under law. Therefore, as there is no evidence to show that the case of the accused falls under Section 84 I.P.C., consequently, the benefit of unsoundness of mind cannot be extended to him. 18. Nextly, it has to be seen whether accused committed the matricide. The second part of Section 304 I.P.C. applies to this case as the deliberate assault where the act of assault can be separated from the injury caused with the result that knowledge of likelihood to cause death can be proved without intention to cause vital injury being established. It is slightly lesser class of offence where there is knowledge that the act is likely to cause death, but where the intention to cause death is not present. The act of the accused is preceded by petty quarrel and the reason for the quarrel is that the deceased refused to cook chicken curry. On that the accused, who was an young man, became infuriated and picked up a cart peg available in the house, and beat a single blow on the head of the deceased, which proved to be fatal. He has not repeated the blows and he has not taken any undue advantage of the situation. Therefore, in view of the fact that the cart peg is a dangerous weapon and head is a vulnerable part of the body, knowledge can be attributed to him that any blow on the head may likely to yield deadly result. Therefore, it is not a case, which falls under any one of four clauses under Section 300 I.P.C., but it is a case, which falls under Exception 4 of Section 300 I.P.C. The said Exception can apply only if all the four conditions laid down viz. (i) absence of premeditation (ii) there must be a sudden fight (iii) the killing must be in the heat of passion upon a sudden quarrel (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner, are satisfied. Hence, the accused is liable for conviction for the offence punishable under Section 304 Part II I.P.C. So, the conviction and sentence under Section 302 I.P.C., recorded against the appellant/accused are liable to be set aside, but we find him guilty for the offence punishable under Section 304 Part II I.P.C. 19. In the result, the conviction and sentence recorded by the II Additional Sessions Judge, Jagtial, Karimnagar, in Judgment, dated 18.04.2007, in Sessions Case No.769 of 2006, against the appellant/accused for the charge under Section 302 I.P.C., are set aside. However, the appellant/accused is found guilty of the offence punishable under Section 304 Part II I.P.C. and accordingly, he is convicted and sentenced to undergo rigorous imprisonment for a period of five years. Period of remand underwent by the appellant/accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 20. The Criminal Appeal is, accordingly, partly allowed to the extent indicated above. ______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J December 30, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.928 OF 2007 Between: Bollarapu Gangaram ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.928 OF 2007 (Per Hon'ble Sri Justice K.C. Bhanu) December 30, 2010 [1] AIR 1964 SC 1563