HIGMa@OyiSE@IS©H»IATillS©«Rhl^Bll..ASI;»UR EM\EISl®NaEN^I-t eoRlM: ,^i|i|GtBMI-SiBifflBR-^BMffiKiil:' .^.iloiiggijiia^i^.jaj.teilll^ ©»i&ifflal,^toffieaKNiQ.Nftt^o:t:j2CIQ5 .iWg'i^ijSB'w,, ^Sf:ateti6%tSSftis8NnK 'i~^'y. yuiiiviENT^Q^^cNiiEBigaiiiOtsi Sd/- T.P.Sharma Judge 'Bi.;EMR.IidiS:BlKffil ll.iai-l%Nsa R •Post-forliSrorilffiui^imiiill^B^Ki^^ sdA • r R.L. Jhanwar ' Judge Sd/- /^-p^ HIGH COURTOF CHHATnSGARH.BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Cnmjnal ARpealNo.741 of 2005 Siyaram aged about 30 years S/o Shri Ghan Shyam Sahu, Labourer, R/o Village Gatayri, Police Station house Koni, Distt. Bilaspur (Ghhattisgarh) Versus APPELLANT/: (Accused) (In Jail) RESPQNDENT/: State of Chhattisgarh Through Police Station House Koni Distt. Bilaspur (C.G.) (Complainant) {Criminal appeal under Section 374 ofthe Code ofCriminal Procedure, 1973} Present: Mr. AshokVerma with Mr. Gajendra Sahu, counselfor the appellant. Mr. Rakesh Jha, Deputy Govt. Advocate for the State/respondent. JUDGIVIENT (Delivered on 28fh January, 2010) Thefollowina iudamentof the Courtwas passed bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 6-4-2005 passed by the 3 Additional Sessions Judge, Bilaspur in Sessions Trial No.230/2004, whereby & whereunder leamed Additional Sessions Judge after holding the appellant guilty for commission of homicidal death amounting to murder of his wife Smt. Deenu, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo imprisonment for three months. 2. Judgment is impugned on the ground that without any iota of evidence and without considering the fact that at the time of commission of offence \ "> f?>^ .-^ A-:' 'l'A. '•."K^73'" -'•"/' v^sy c the appellant was mentally ill and was not in a position to understand good and bad, right and wrong, the Court below has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that Smt. Deenu (since deceased), wife of the appellant, was residing with the appellant at Village Gatauri, Distt. Bilaspur. On the fateful day of 7-3-2004 (Holi festival) at about 2.30 mid night, brother of the appellant Jaijairam Sahu (PW-6) was coming with Chotelal Yadav after celebrating Holi (after burning the Holi), when they came in front of the house of the appellant, the appellant was coming out from his courtyard, he was holding kudari (agricultural weapon), he put the kudari near the door and fled away. Jaijairam Sahu (PW-6) & Chotelal Yadav immediately went inside the house of the appellant, wife of the appellant Smt. Deenu Bai was lying in injured condition, Jaijairam Sahu immediately told the incident to his father who was also residing in the same house. Ghanshyam Prasad Sahu (PW-7), father of the appellant, also went inside the room of the appellant, wife of the appellant was lying on the cot in badly injured condition, blood was coming out and within minutes she died. The appellant used to quarrel with the deceased. Father of the appellant lodged F.1.R. vide Ex.P-5 on the same day within 1 hour 15 minutes. The Investigating Officer recorded merg vide Ex.P-13, left for the scene of occurrence and after summoning the witnesses vide Ex.P-8, inquest over the dead body of the deceased was prepared vide Ex.P-1 . Dead body was sent for autopsy to the Assistant Surgeon, Government Hospital, Bilaspur, vide Ex.P-15 and autopsy was conducted by Dr. A.P. Rai (PW-4) & Dr. Mrs. A. Chepde vide Ex.P-3 and following injuries were found: - (1) Lacerated wound in front of head over nose, size 3 cms. x 2 cms. x bonedeep; ^' (2) Lacerated wound near first injury, size 3 cms. x 2 cms. x bone deep penetrating brain cavity; (3) Lacerated wound over right cheek, size 3 cms. x 2 cms. x bone deep inserting up to mouth; (4) Lacerated wound over left side of nose inserting up to mouth; (5) Lacerated wound over left jaw, size 4 cms. x 2 cms. inserting up to mouth, fracture ofjaw; (6) Lacerated wound over thumb & fingers of right hand, size 3 cms. x 2cms,x 1 cm.; (7) Lacerated wound over left hand, size 6 cms. x 2 cms. x 1 cm.; (8) Lacerated wound over right elbow, size 2 cms. x 1 cm. x 1 cm.; (9) Fracture of maxila nasal bone & jaw was found; (iQ)Rupture of brain tissue and haemorrhage inside the brain. Death of the deceased was as a result of shock due to grievous injuries over head. Bloodstained kudah was seized in front of the courtyard of the appellant vide Ex.P-6. Plain soil & bloodstained soil were seized from the spot vide Ex.P-7. One bloodstained half shirt was seized from the accused vide Ex.P-9. Sealed clothes of the deceased after autopsy were seized vide Ex.P-11. Patwari prepared spot map vide Ex.P-4. Seized kudah was sent for examination to the doctor and the doctor opined that the injuries found over the dead body may be caused by the kudah and thestains found over the kudari may be of blood. Seized articles were sent for chemical examination vide Ex.P-20 arid presence of blood over kudari was confirmed by the chemical examiner vide Ex.P- 23. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. l^ i^' v ^- •^ss^ ^1 5. In order to prove the guilt of the appellant, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. The appellant has also filed an application (I.A.No.2/2009) under Section 391 of the Cr.P.C. for taking additional evidence, especially relating to previous insanity (mental ittness) and treatment of the appellant. We have heard learned counsel forthe parties on I.A.No.2/2009 also. 9. Mr. Ashok Verma, learned counsel for the appellant, vehemently argued that in the present case, right from the beginning the appellant has taken the defence that he was mentally ill and insane and was not in a position to understand right or wrong and good or bad, therefore, the trial Court was under obligation to decide the question of insanity of the appellant before proceeding for trial. Learned counsel further argued that the evidences of Jaijairam Sahu (PW-6), brother of the appellant & Ghanshyam Prasad Sahu (PW-7), father of the appellant, clearly reveal that prior to the alleged incident, the appellant was not mentally normal, he was not able to understand good & bad, right or wrong, he was working at Mahasamund as driver, he proceeded for Bilaspur and reached Bilaspur after one month, and he was not in a position to explain the reason for such delay in travelling from Mahasamund to Bilaspur. His mental position was not normal. In case of mental illness of the accused, during the course of trial, the Court was under obligation to .^1 ^;- / /' decide the question of unsoundness of mind before proceeding for trial. The Court was also under obligation to decide the question of unsound mind in accordance with Chapter XXV of the Cr.P.C. but instead of proceeding under Chapter XXV of the Cr.P.C. the Court has illegally tried and convicted the appellant in the aforesaid manner. Learned counsel also argued that the appellant has not committed any offence and the Court below has convicted the appellant withoutany evidence sufficient for his conviction. Learned counsel placed reliance in the matters of Pujappa v. The State and The State of Karnataka (Kanakagiri P.S.) v. Doragal Kanakappa in which the Karnataka High Court has held that in case of accused mentally unsound, failure to hold enquiry and to record finding as to mental condition of accused, vitiates the trial. Learned counsel further placed reliance in the matter of Abdullah Jhat and another v. State of Jammu and Kashmirand another in which the Jammu and Kashmir High Court has held that rejection of plea of insanity without examining medical officer to prove its contents is serious prejudice caused to the accusedand the trial must be vitiated. Learned counsel also placed reliance in the matter of Hussain v. State of Kerala in which the Kerala High Court has held that the evidence of doctor relating to history of the accused of paranoid schizophrenia and non-answering of questions put to the accused under Section 313 of the Cr.P.C. lead to the circumstances that the accused was not able to understand good and bad, right and wrong, and he is entitled to benefit of Section 84 of the I.P.C. Learned counsel relied upon the matter of Rajkumar v. State of Nladhya Pradesh (nowChhattisgarh) in which this Court has held that history of mental illness of the accused at the 1 1991 Cri.L.J. 1189 2 1996 Cri. L.J. 599 3 1999 Cri. L.J. 3034 't2005Cri.L.J.3916 5 2006 Cri. L.J. 2472 .^sffSSSSSS^ /y^r tj' g. !«8! ^ ^ ^ 'Z 6 time of commission of offence and commission of offence without any rhyme or reason that too assaulting his mother & father, supports insanity of the accused and the accused is entitled to benefit of Section 84 of the I.P.C. Learned counsel further retied upon the matter of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat in which the Apex Court has held that for considering the plea of insanity, circumstances which preceded, attended and followed the crime to be considered. Learned counsel also relied upon the matter of Ratan Lal v. The State of IVIadhya Pradesh in which the Apex Court has hetd that in case of defence of insanity, behaviour of accused on the day of occurrence is material. Learned counsel placed reliance in the matter of State of Gujarat v. Mohanlal Jitamalji Porwal and another in which the Apex Court has held that with a view to decide the real controversy between the parties, the Court is competent to receive additional evidence at appellate stage. 10.0n the other hand, Mr. Rakesh Jha, learned Deputy Govt. Advocate appearing on behalf of the State/respondent opposed the appeai and submitted that the appellant was represented by a duly appointed counsel during trial, the appellant has not filed any application before the trial Court that at the time of commission of offence he was insane and was incapable of knowing the nature of the act at the tinie of commiss.on of the offence. Insanity at the time of commission of offence is material and not prior or subsequent thereto. The appellant was not insane, he was not having any mental illness and the evidence adduced on behalf of the prosecution is sufficient to prove that the appellant has committed the aforesaid offence with intent to cause the death of his wife. His 6AIR1964SC1563 7 1970(3) SCC 533 a (1987)28cc 364 rr~) 7 conduct was not unnatural before commission of crime, at the time of commission of crime and after commission of crime, therefore, he is not entitled for any benefit in terms of Section 84 of the I.P.C. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12.Homicidal death as a result of ante-mortem fatal injuries found over scalp of deceased Deenu Bai has not been substantially disputed by the appellant, on the other hand, established by the evidence of Dr. A.P. Rai (PW-4) and autopsy report Ex.P-2 which reveal that multi fatal injuries were found over head of the deceased, death was due to shock and nature ofdeath was homicidal. 13.1n the present case, the appellant has taken specific defence that he is entitled for the benefit of Section 84 of the I.P.C. which reads as follows: "84. Act of a person of unsound mind.—Nothingis an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." 14.Defence of unsound mind may be available to the accused if he succeeds in proving the fact that at the time of commission of the offence he was incapable of knowing the nature of the act by reason of unsoundness of mind and state of unsoundness of mind must exist at the time of commission of crime. Burden to prove such fact is on the appellant. As has been held by the Apex Court in the matter of State v. Ahmadaulla , burden is on the appellanVaccused to prove the existence of unsoundness of mind at the time of commission of offence, but this defence is not available to the accused if after the commission of incident insanity or unsoundness of mind is developed. "^ AIR 1961 SC 998 8 15.As regards the benefit of Section 84 ofthe I.P.C., as has been held in the matters of Dahyabhai (supra), Hussain (supra) & Rajkumar (supra), previous and subsequent conduct of the appellant do not support the case of unsoundness of mind or insanity entitling the appellant to the benefit of Section 84 of the I.P.C. 16.1n case of unsoundness of mind of the accused the Court is required to hold ehquiry in accordance with Chapter XXV of the Cr.P.C. and if the Court finds that the accused is a man of unsound mind, the accused should be released pending investigation or trial in accordance with Section 330 ofthe Cr.P.C. 17.Record of the trial Court reveals that during the course of trial, charge was framed on 7-8-2004, the accused has properly answered the charge and he was examined under Section 313 of the Cr.P.C. on 23-2-2005. The answers given by the accused reveal that he has also properly answered as many as 72 questions put to him and he has specifically took the defence that he has been falsely implicated in the crime in question. During the course of trial, the accused was properly represented by a duly engaged counsel. On 1-11-2004 an application relating to stay of the case and proper treatment of the accused was filed on behalf of the accused before the trial Court. The accused was examined by the doctor and finally by the expert doctors of Medical College, Raipur, and they found that the accused was not suffering from any mental illness or mental disease. After receiving report from the jail, the trial Court has further proceeded in trial and concluded the trial. This shows that during the course of trial, the accused/appellant was not suffering from any mental illness or was not lunatic or insane and the trial Court has adopted proper procedure. /'"'^ / . •?'' (^ 9 IS.During the course of appeat, the appellant has filed an application (I.A. No.2/2009) under Section 391 of the Cr.P.C. for taking additional evidence on record. In the matter of State of Gujarat (supra), the Apex Court has held that in suitable cases additionat evidence can be taken at appellate stage to decide the real controversy between the parties. 19.1n the present case, the appellant has filed three documents along with the said application (I.A.No.2/2009). First document (Annexure P-2) relates to an intimation dated 1-12-2000 given by father ofthe appellant which reveals that father of the appellant has made written intimation to the police that the appellant is mentally ill since last six months. Second document (Annexure P-3) is treatment report of psychiatrist dated 17-6- 2000 which reveals that the appellant was under treatment in the year 2000. Third document (Annexure P-4) also retates to treatment of the appettant in the year 2000. 20.1n the present case, offence has been committed on 7-3-2004 after four years of the alleged treatment. Evidence of Ghanshyam Prasad SaHu (PW-7), father of the appellant, especially para 6, reveals that two years prior to the incident the appellant was working at Mahasamund as driver, he proceeded from Mahasamund to Bilaspur and reached Bilaspur after 18 days. The appellant was in the habit of moving here and there without any intimation Ghanshyam Prasad Sahu (PW-7) has also admitted that the appellant is having two sons and on previous day, when he asked the accused, the accused told that he is having only one son. He has further deposed that his son was under treatment and even he was willing to take his son for treatment at Raipur, but he had not taken his son only on the ground that his son will not take medicines. i^- 10 21.Jaijairam Sahu (PW-6), brother of the appellant, has also stated same thing and has specifically deposed in para 5 that at the time of incident the appellant was present in his room along with his wife & two children. The room of the appellant was adjoining to the room of his father. In para 6, he has specifically admitted that he has gone to search his brother i.e. the appellant only one time. In para 8 of his evidence he has specifically denied the suggestion that he has not seen the incident and the appellant had not fled away from the spot. 22. Record of the trial Court reveals that the appellant was not mentally ill during trial. The trial Court has considered the application and has sent the appellant for examination before expert and after receiving report of the expert, the trial Court has further proceeded for trial of the case. 23.As has been held by the Karnataka High Court inthe matters of Pujappa (supra) and The State of Karnataka (supra), the trial Court has provided opportunity to the parties and on the basis of report of the doctor, after examining the appellant, it has further proceeded in trial of the case. 24.Evidence of Jaijairam Sahu (PW-6) reveals that even on the date of commission of offence, the appellant was present in his room along with his wife & two children. If the appellant would be of unsound mind or lunatic it is difficult to hold that brother, father & other family members of the appellant will leave small children with the appellant under the mercy of the appellant. The appellant has not assaulted or caused any injury to his two children who were present at the time of incident inside the room under the control of the appellant. After commission of offence, according to the case of the prosecution, the appellant came out from the room and after keeping kudari, he fled away from the house. In case of "f' :..A ¥§&;?3SSSh 8 r'"'i:''^? irii 11 ,/~~~\ (^•) unsoundness of mind or mental illness it would be difficult for the appellant to flee away from the spot or to spare his two children who were present in his room. This shows that the appellant was not incapable of knowing the nature of the act by reason of unsoundness of mind. Even such defence has not been taken by the appellant at the time of trial. The appellant has not proved or even has not adduced any evidence to show that at the time of commission of offence by reason of unsoundness of mind he was incapable of knowing the nature of the act. It appears that the appellant has taken this defence without any substantive ground or factual support. Even if the documents sought to be admitted in evidence are accepted, they would be of no use becayse they will not prove the fact that at the time of commission of offence, the appellant was mentally ill or was of unsound mind. Therefore, the application (I.A.No.2/2009) is liable to be dismissed and it is hereby dismissed. 25.As regards complicity ofthe appellant in the crime in question, conviction ofthe appellant is based on the evidence ofVinod KumarYadav (PW-1) & Jaijairam Sahu (PW-6), brother ofthe appellant. 26.Jaijairam Sahu (PW-6), brother of the appellant, has deposed in his evidence that on the day of 1-loti festival at about 1.30 mid night, he along with Vinod Kumar Yadav (PW-1) was coming towards their house from the place where the Holi was celebrated, the appellant came out from his house along with kudah and after keeping kudari near the door, he fled away from backside of his house. They immediately entered into the house of the appellant where deceased Smt. Deenu Sahu was lying on cot in restless position, they immediately searched for the appellant, but he was not traceable and finally the deceased died on the spot. Vinod Kumar Yadav (PW-1) has corroborated the evidence of Jaijairam Sahu ;'>•- 12 (PW-6). In his detailed cross-examination, Jaijairam Sahu (PW-6) has specifically denied the suggestion that he has not seen the incident or he has not seen the appellant while he was running from the spot or he is implicating the appellantfalsely. 27.Defence has also cross-examined Vinod Kumar Yadav (PW-1) in detail. In his detailed examination, the aforesaid fact that the appellant came with kudari and after keeping kudah near the door, the appellant run away from the spot, has been admitted by this witness. Kudari was seized vide Ex.P-6 from the spot, it was sent for chemical examination vide Ex.P-22 and presence of blood over kudan' was confirmed vide Ex.P-23. Kudan'was produced before the Court by Dinesh Singh Thakur (PW-3) and was marked as Art. A. 28.Evidence of Jaijairam Sahu (PW-6), brother of the appellant, reveals that at the time of incident two children aged about 5 years & 7 years, Smt. Deenu (since deceased) and the appellant were present inside the room, the appellant came out with kudari and after keeping kudari near the door, he fled away from the spot and was not traceable. This witness immediately went inside the room where the deceased was lying on cot in restless position and after some time, she died. At about 1.30 mid night, presence of any third person inside the house of the appellant was not natural, but presence of the appeltant was natural. These facts/ circumstances are sufficient for drawing inference that the appellant was the person who has caused fatal injuries to his wife, he was author of the crime and that except the appellant, nobody was author of the crime or had committed the culpable homicide of deceased Smt. Deenu Sahu. 29.As regards the question of motive, motive only aids in criminality and it loses its importance in case of direct evidence. Motive can be inferred t^] if7 wy e- 13 on the basis of nature of injury, weapon used and part of the body effected. In the present case, the appellant has used kudari, the dangerous weapon, and has caused as many as seven injuries including fatal injuries over face & head of the deceased which are sufficient for causing her death. Nature of injury, weapon used and causing repeated injuries show grave intention of the accused of causing murder of the deceased. rf* SO.After appreciating the evidence available on record, the trial Court has convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo imprisonment for three months. Conviction of the appellant is based on clinching and credible evidence sustainable under the law. The trial Court has awarded minimum sentence prescribed under the law. 31.0n close scrutiny of evidence, we do not find any substance in the appeal, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. Sd/- ___ - R.L. Jhanwar Judge Sd/- T.P. Sharma Judge Homa