t XI-HG—78 3)1^1 qiT (t;-fis|] Wl 31RW *t|l°j> -Ksai^-. ~'ii 3"55f ^IIAII^A), ^Tflti'lfi, (s|<?il<-fy WTC-iT **11<b C^. f\. f^Q- goz./'^oDa- "•^ 3n^?r 13% (1j?f55i?F) TCITW flfer sii^r APPELLANT (!n Jai!) RESPONDENT (Appeal undet Division Bench; Hon'ble Shri L.C. Bhadoo & Hon'b'e Shri Sunil Kumar Sirtoa, JJ 27-7-2007 Shri H.S. Ahuhivalia, cou etll^-tflf 'RTO^if ^ ^S <P»(^.1< ^; a.ifin siiig 3ardeshi, S/o Galao Basade, aged about 34 /ears, R/o Kosmanda, P.S. Champa, District Janjgir-Champa (CG). -Versus- StateofC.G. r Section 374(2) of the Cr.P.C.) isel for the appellant. Shri D.K. Gwalre, Addt. fl'ublic Prosecutor for the State. Heard. I Oral judgment dictated o| Sunil KumarSinha. J sentence dated 26-7-2002 pas^ Sessions Trial No.273/2000 Section 302 ofthe Indian Pena i dias. This appeal is directed ^gainst the judgment of convietion and order of .ed by the Additional Sessions Judge, Janjgir, in whereby the appellant was convicted under Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.lpO/-. 2) The caseof the prosecijtion, in brief, is that on 13-5-2000 the appellant caused death of deceased Du' Bai (PW-1^) arid Rathram (PV\j h/asia Bai. The incident was witnessed by Kiri -12). Kiri Bai is the neighbour of the deceased XI-HC. 311^1 W R-li'h ?nr SIR^I a»i!qi ?5*?^1'?^^i^i^ SI5S"t3KsisfgiS9 < P-;8SNRii€f.\ ^ •Sv3t -t||i)|<-!>A|, SiTTl+fl^, (stC'.IU^ Cv<|\. - 9o2-/Z^Q^- an^?T TH% (ipf^^ii) wnw^fef sii^i -~i- and Rathram is the son of thel lodged by Budhram (PW-1) ir| of the appetlant. Duringthe Section 175 of the Code of Ci|i inquest on the body of dece( Blood stained & plain soil a|' deceased were seized froml Ex.P/4. Memorandum of th^ basis of information given bvl recovered under Ex.P/6. Al 15-5-2000. The dead body of Hospital, Champa under Ex.l the postmortem, prepared as Ex.P/6). According to th^ many as 9 external injuries.l hemorrhage as a result evidence of F'W-15 Dr. H.S. q both the bones of forearm. dislocation of C-1 & C-2 with wound over left side of the n< 4 cm. over left side of neck 7% x 3 cm. and there was posterior aspect of neck at a were lacerated. There was in] shoulder. There was incised neck along with incised woun< of fra(tture <<>lltd4'l 'Wiaf 'itfezt ilalt^K ^?3ifim SII^T deceased. First Information Report(Ex.P/1)was Police Station Champa, which contains the'rtame sourse of investigation, notice to witnesses under jminal Procedure was given under Ex.P/2 and the ased was prepared under Ex.P/3 on 13-5-200). |ong with the chain & pieces of bangtes of the the place of occurrence on 13-5-2000 under appellant was recorded uhder Ex.P/5. On the the appellant axe, the weapon of offence, was club (danda) was recovered under Ex.P/7 on the deceased was sent for Dostmortem to BDM .lp/5 where Dr. H.S. Chandel (PW-15) conducted po^tmortem report dated 13-5-2000 (again marked postmortem report, the deceased received as Cause of death was opined to be shock and of C-1 & C-2 with injury of spinal card. The Shandel would show that there were fractures on |There were fractures of right ribs. There was (ransaction of spinal card with 6 x 2% cm. incised lck. There was incised wound in the size of 6 x bo|ie deep. There was incised wound in the size of another incised wound in the size of 5 x 2% cm. over listance of 1 cm. from each other. Neck mussels itsised wound in the size of 4 x 2% cm. over left l/ound in the size of 3 x 0.5 cm. over lower part of in the size of 2 x 0.5 cm. on the backside of the ^-^ I-HG—78 •3:)'res??5i'ft?ti% ?:'iiT SS^S shW'b ~Sv3! "'IMI <?'><), yTfly'ii?, Rlc'il'My C-6-. <\. ^o- 9o^ liS&l- "^ 3D^?T 'qaw ('^??3^5?D !ower portion of the neck. !n also found fractured. There Liver was atso ruptured. Abd empty and pate. Spteen & the intsma! e)®m!nation,right 5 & 6 ribs were w^is contusion in right lungs. tt was pate in colour. )d<>minal cavitv was fitted with blood and heart was were ateo pale. Kid|iey 3) After completion of usjiat Court of Chief Judicial MaAistrate committed to the Court of transfer by learned Additional and convicted the appellant as| investigation, charge sheet was filed in ie Janjgir, from where the matter was Sjessions Judge, Bilaspur and was recewed on ^essions Judge, Janjgir, who conducted the trial laforementioned. 4) The conviction of the Bai (PW-11) and Rathram (PV\( 5) Learned counsel for Rathram are not the reliable occurrence. The testimonv of argues that there appears to| Sessions Court erred in taw b\l the Indian Penal Code. learted 6) On the other hand, advanced bv learned counsel trial Court. 7) So far as evidence of that she happens to be the when the deceased was and called her. Thereafter th4 ^Ttlfe-ift-t ^W^f tf,fS1^ ^T^R ^? aifaT sn^i acjcused/appellant is based on the testimony of Kiri <-12). he accused/appellant argues that Kiri Bai '& Iwitnesses and in fect, they have not seen the these witnesses should be disbelieved. He also |be insanity in the matter of appeltant and the not granting him the benefrt under Section 84 of counsel for the State opposes the arguments for the appellant and supports the judgment of l^iri Bai (PW-11) is concerned, she has deposed rfeighbour of the deceased. On the fatefu) day passi^ig through fhe galithe appellant came over there appellant reached near the deceased. At that 3^?T -^W\v>^, ^-^[WW, fqi^iyy 3lTh<I^I'f?;lN •flEII2iTSSIWqN? ;isS>'=-li. •u'i'i .sfSsS \^^-'^:y' Cr.A. NO- 90:l-^'2-6oi- "^ 200 an^?r'q^q; (4<<(-j,«i<yi) time he was having a tangia. $< thereafter he attacked the deiteased her neck. Though this witne^i length, but nothing important to assail hertestimony on the incidentthatthe appellant has iome conversation took place between them and with tangia and gave repeated blows on. ^s has been cross-examined by the defence at been brought in her cross-examination so as »ointof her evidence that she had witnessed the lassaulted the deceased. Has h*r 8) Rathram (PW-12), son < evidence that on the fateful d< he was armed with a tangia. reached there and attacked after the first assault, he gav< (deceased), on which blood down on the spot. This witnes] but the defence has not been may assail and discredit the te^ 9) The evidence of these M| H.S. Chandel (R(V-15), who| deceased and Tound as man'l various bones as are indicatect also corroborated by the Therefore, on the basis of corroborated bv the medical these witnesses are unreliable upon thetestimony of these wi^ chl<4l<T<ftl tTFI^f ^t\'fe1^ <Rl^)< ^•ailwiaoi^l rf the deceased, has deposed vide para 2 of his l^y, the appellant called his mother. At that time, |When his mother was stopped in gali, appellant witti tangia. He has specificalty deposed that repeated assaults on the neck of his mother slarted oozina out from the injuries and she fell has also been cross-examined by the defence, ^ble to bring any such material on reeord, which Wmonv of this witness also. 1/itnesses is corroborated bv thetestimonv of Dr. conducted postmortem on the body af the as 9 extemal injuries along with fractures of supra. The evidence of these two witnesses is con|tents of the First Information Report (Ex.P/1). abcjve evidence of these witnesses, which are duly ^vidence, it cannot be said that the version of and the trial Court erred in law in depending Inesses. .-—— e -78 S:IR"?I ^il R(-li+ 'TTi SH^I 5fc*( 3^ST "tjl<41«*l, »Ti"K1<IS, fsfrtl'yy CL-iT -f\ . N'o • 9o'2-| 1-OoT— •'WI, 200 ^RIIW ^if??f sii^r <r- The accused is protected not either that the act was wrong oil know the nature of the act itself what he was doing was wrong, law, and also if he knew that' •t>l'i<f<-l4-f tlWdT Tt'.fs^ <?<«$]< ^3ifiTiT3n^r 10) So far as argument adva^iced by leamed counsel for the appellant with regard to insanity of the app^llant is concerned, Section 84 of the i.P.C. exonerate a person from Ifabilitylfor doing an act on the ground of unsoundness of mind if he, at the time of doin^ the act, is either incapable of knowing (a) the nature of the act, or (b) that he i^ doing what is either wrong or confrary to law. onty when, on account of insanity, he was incapabte of knowing the natur^ of the act, but also when he did not know that it was contrary to law, although he might He is, however, not protected if he knew that ^ven if he did not know that it was contrary to |yhat he was doing was contrary to law even though he did not know that H: w^s wrong. The onus of proving unsoundness of mind is on the accused. 11) As per the provisions of the burden of proof rests on arj onerous as that upon the prosec|ution act with which he is charged. resting upon a plaintiff or a defe^dant the Apex Court in the matter of 1964 SC 1563. In sucha casei, establish that the accused has murder are satisfied, then bunpen account of insanitv, unsoundnes^ Section 84 of the I.P.C. Becaus^ pection 105 of the Indian Evidence Act, 1872 accused to prove his insanity, and is not so to prove that the accused committed the burden on the accused is no higherthan that in a civil proceeding as has been held bv Ejlahyabhai v. State of Gujarat reported in AIR ^, the primary burden is on the prosecution to 4ommitted the murder and or of ingredients of shifts on the accused to prove that on of the mind, the act of the accused talls under on account of the unsoundness of the mind. l.,»_U..i..-' 'j:.£lC—78 <!T,^'I?ff1^lN; y-TISWStWRR; ..--i-tis lEt'-'siSSB1'' 3^T "4Ni<?i4, a'<{l'y'is, Ri0iy^< C^.(\.^^' 9oT-/10bT__ ^ TRR; ( 's^nwd^isii^i he was at the time doing the a^. he is doing what is either wron^ 12) In the present case, it (I learned counsel for the app^l (nvestigating Officer. In fact, during the couree of trial, su|c> appellant was suffering from mav seek benefit under Sectioh Investiaating Officer A.L. Koshl suggestion, an attempt was at the time of arrest the accus^d such a suggestion was comple1|el m^de evidehce dne 13) At the fag end of the tt| record by adducing the Neera Bai, who has stated in mentel condition and she was cross-examination, she has Doctor and he was not treatedl examination she has also stated, the accused never used idle in mum condition and use<|t of the so called insanity of the| she has categorically stated jhad phook to Shiwinaravan is| before the Court. She has alst> cbt^l<yt4l'1 T[P:I^f^l^^ <pq^l< i? aRn 3iA?i incapable of knowing the nature of the act that or contrary to law, then he is protected. loes not appear that the in^nity so argued by )^ltant was ever brought to the notice of the |neither during the course of investigation nor ;h plea was taken which may show that the uihsoundness of mind and on account of which he 84 of the I.P.C. If we examine the evidence of |ey (PW-18), it would appear that only as a last by the defence by putting a suggestion that was suffering from unsoundness of mind, but •1|ely denied bythe Investiaating Officer. ial, the defence had tcied to bring this fact on of wife of the accused as DW-1 namelv. line that her husband was not keeping aood taking him terjhad phook to Shivrinarayan. In that the accused was not shown to any |in any hospital. Further in para 4 of her cross- that even in said condition, as she earlier to beat her or the villagers. He only used to sit to talk on his own. This was the consequence accused. In para 5 of her cross-examination, the fact pertaining to taking the accused for a wrong fact, which she has wrongly deposed admitted that the accused was not shown to actnitted admlitted tfct ^ ^VfV^^r I-He—78 ;iT,^']?!TfeN -iCI'CT^T^^lN; i.L-visftSSS1 i5IS®^P4NSi' Gowri 3^T'^l<)10-ll,-^'Ji'y'l<S, lsj<rtl<1^< ^ C-^.^.MO. 9o^;2-<So^ an^nroR (•y[l«icit() 'S^IIWHto 311^1 -•?-- anybody for his treatment in Ihis said that the benefit of exceiiition Section 84 was available to th< |his regard. On this evidence only, it cannot be provided by ttie tndlan Penal Code under accused. 14) In the present case, th that the accused has committ4d discharged his burden of pro^i regarding plea of unsoundnesjs that even during the course o\ before the trial Court for gettl|ig ascertain as to whether he wa< of commission of offence. Exct< accused, no other material has was suffering from unsoundne^s 15) In the opinion this unsoundness of the mind of accused/appellant cannot be case. counsel for the accused/appf sentence passed bv learned deserves to be dismissed and ^)l-4i<rl^t'*1 "RI^f "^^fe^ ^f^R ^ISTlOT 311^1 prosecution has discharged its primary burden the crime inauestion, butthe accused has not ing an exception under Section 84 of the I.P.C. ^ of his mind. It is further important to mention trial.the defence has not made any application the accused medically examined in order to suffering from unsoundness of mind at the time |ept the evidence of DW-1 Neera Bai, wife of the been brought on record to say that the accused of mind. Sourt, the second argument with regard to |accused advanced by leamed counsel for the sustained in the facts and circumstances of the 16) In the result, we find n|o force in thearguments advanced by learned llant, the judgrnent of conviction and order of rial Court is based upon sound reasoningsand fhere appears to be no ftlegatily or infirmity. The appeal being devoid of merit |s accordingly dismissed. Sd/- L.C.BHADOO Judge Sd/- SunU Kumar Sinha Judge t-3s-^^ '^£nrf»tvr—^~!^^!t