EEQH SOUR? QF CRHATTISGARH AT §ILASPUR $§V€i$i$§£ §E§€H1 gea’ble $ha'i Fakhtndéin £5 §§aa473e $§ri Vii. Skrivaséava, J J. $R£M1§AL APPEAL NC). $3G£ 1999 Lakh&glal Vg gtate 9f {thhattiggagha QQ&.M4§: aEIJBGMENT EQR GG§$1D§RAT¥Q& # sm- V.K. Shrivastava ”-vyw {2g05ié006 §§§Bk§le ghxi Fakhmdéia, Ja $ www/ 5di— -‘ Fakhruddin Judge # Post far 52 105;20Q6/// j/c V// , , > W S x \\ V..Shrivastava Judge 1’ i 1 ‘x‘x *\ /// \ - K / HIGH COURT OF CHHATU$6ARH : BELASPUR (Division Bench) CORAAA: Hon‘ble Shr'i Fakhr-uddin <3: Horfble Shri Vijay Kumar Shrivasfava, J. J CRiMiNAL APPEAL NG.830 af‘ 1999 Appeiicmf : Lakhanlal, aged 25 yaar's, S/o shyamlai, R/o Amaur'a, Poke S‘I'm'ion Shvrinomycm, Dis? Janjgir, Champa Vs Responden’r : 5mm of Chha‘i‘fisgurh fhrough Poiice Sfafion Shivrinarayan, DisT—Janjgir Champa F’RE5ENT: Shri Avims‘n Kumar Mishm, counsel for The appeiicm'r. Shri Akhil Mishm, Panel lawyer for fhe 5mm. Shri PKC Tiwar‘i, Senior Advocai‘e wi'lh Shri Sasl‘ii Bhushan as amicus curiae. JUD§MENT ( Delivered mill/051 ZOOé) Per Vijuy Kumar Shrivasfava, J. This appeal is direcfed againsf fhe judgmem‘ 0f convicTion and crder 9f semence da’red 27.01.1999 passed by learned AddiTional Sessions Judge, Janjgir in Sessions Trial No.255/1997 whereby holding The appellani'kguill’y for“ commi‘l‘l‘ing ‘l’he offence of murder punishable under Secfion 302 and The appellan‘l’ has been senTenced 1’0 undergo imprsonmen‘r for life and 1'0 pay a fine of i Rs.1,000/-, and in defaul‘r of paymen‘i' of fine, To undergo addi‘l’ional'RI for Two mon'rhs. 2) FacTs mafer'ial for disposal of This appeal in brief compass are fha‘i’ Shyamlai was married 1'0 Kaiiasabai. Ou‘i' of Their wedlock, one son and Three daughfers were born and appeilan‘r is Their son. Kaiiasabai died of iiiness as she was suffering from cancer. AfTer The dea‘i‘h of Kailasabai, Shyamlal con‘rac‘l'ed second marriage wifh Sashikaia and deceased Bhunda @ Shivkumar was born ouf of Their wediock. Appeilanf was living along wifh his fafher — Shyamlal, his fhree sisfers, sfep mo‘rher - Sashikala, and sfep brofher - Bhunda @ Shivkumar. Affer bir'rh of Bhunda @ Shivkumar, on The assumpfion Thai” he will share his righT in The properTy, appellanT developed animosiTy wiTh The deceased. 3) On 04.04.1997, Sashikala, deceased Bhunda @ Shivkumar and his sTep sisTer Padma Kumari were in house. In The evening aT around 7 pm, Sashikala wenT inside The room adjoining To The sTreeT for lighTing The earThen lamp and was waiTing There due To rain. Padma Kumari and Bhunda @ Shivkumar were eaTing gram siTTing by The side of kiTchen furnace. AppellanT came There uTTering filThy words and ThereafTer lifTed carpenTer axe, came near Them and sTarTed assaulTing Bhunda @ Shivkumar by ThaT axe. Padma Kumari rushed To her sTep moTher raising ouTcry and informed her ThaT Lakhan is assaulTing Bhunda @ Shivkumar by carpenTer axe. AT ThaT R i (I l f l Time shyamlal was a? The house of Manhamn Thukur. Sashikala wen‘r fher‘e and informed her husband Tha‘r Lakhan killed Bhunda @ 5h ivkumar. 4) Appellan‘r uf'l'er wielding various injuriés on Tha neck of Bhunda @ Shivkumar, caugh'l' fhe dead body and carried i1- To The house of his uncle Radheyshyam. There, appeilan‘r ccnfessed ThaT he has killed Bhunda @ Shivkumar' and asked for apology. Anandr'am, son of Radheysham, affer- receiving informa'l’ion Tha'i' Lakhan has killed Bhunda @ Shivkumar came To his house; by Tha‘l- fime crowd was assembled There. Dead body of Bhunda @ Shivkumar was Taken by his mofher Sashikala inside The room. He saw the dead body and also saw injuries on his neck from where blood was oozing. He came To know ThaT Lakhan killed Bhunda @ Shivkumar and broughf The dead body To his house. He was asked To lodge The reporT; Therefore, he wenT To Shivrinarayan Police STaTion’ gave merg inTimaTion and reporTed The maTTer. Merg inTimaTion and FIR was recorded by The STaTion House Officer NL DhriTlahare, who afTer recording boTh The documenTs wenT To The spoT for invesTigaTion. §) SHO conducTed inquesT, prepared inquesT reporT of dead body, collecTed blood sTained earTh, conTrol earTh from The spoT, seized The same and also seized blood sTained carpenTer axe ThaT was lying on The spoT. Dead body of Bhunda @ Shivkumar was senT for auTopsy. Dr.RK Upadhyay conducTed posTmorTem on The dead body of Bhunda @ Shivkumar. HehafTe'r agoEy describing all The injuries 5s found on The body of Bhunda @ Shivkumar and also expressing his opinion Thm‘ the cause of deafh is haemor-rhage and coma due To injury on head and underlying s‘rruc‘rures, gave his repor‘r fo The Police. The weapon of offence carpenfer axe was aiso examined by him, and on examinafion, he was of The view 'rha‘r injuries caused To The deceased J " may be caused by ThaT weapon; Blood sTained banyan of The appellanT was also seized. SpoT map was prepared; wiTnesses were examined under SecTion 161 of The Cr.P.C. Seized arTicles were senT To The Forensic Science LaboraTory for chemical examinaTion. Chemical examiner afTer examinaTion, found blood over carpenTer axe, appellanT‘s banyan and blood sTained earTh. AfTer compleTion of The invesTigaTion, challan under SecTion 302 of The IPC was led in The CourT of Judicial MagisTra‘re 1sT Class, Janjgir, who commiTTed The case To The CourT of Sessions for Triali 6} Charge under SecTion 302 of The IPC was framed againsT The appellanT and ‘The same was read over and explained To him, who abjured The guilT. His defence was ThaT aT The Time of incidenT, he was suffering from menTal unsoundness. He was noT being TreaTed by any docTor buT his faTher was providing him TreaTmenT from a Baiga. From This TreaTmenT, he was well for one or Two years; buT again The unsoundness revived and aT The Time of incidenT, he was incapable of knowing as To whaT he was doing. 7) Learned Trial CourT afTer due appreciaTion of evidence, hold ThaT The appellanT is noT enTiTled for The benefiT of SecTion 84 » l x / l i ; of The IPC because i'r was nof proved Tha‘r a? The fime of incident he was of unsound mind. Learned 'rr-ial cour‘r hold The appellan‘r guil‘fy for commi'H’ing murder of The deceased punishable under Section 302 of The IPC, Therefore, convic‘l’ed and sen‘renced him. 8) dispu‘red by fhe appelian‘r. Even ofherwise, from The evidence of Dr RK Upadhyay (PW-13) and from auTopsy reporT (EXP/20) proved by him iT is esTablished and proved ThaT The deceased received following anTe-morTem injuries and died as a resulT of haemorrhage and coma due To The injuries on his head and underlying sTrucTures. The cause of deafh, na‘rure and mode has nof been 1) Incised wound 9cm x 5 cm x 3 1/2 cm obliquely placed on The righT side and lower parT of The head over The occipiTal area, righT lower occipiTal bone found fracTur-ed and The underlying parT of The brain found cuT and exposed blood cloT presenT in The wound. 2) incised wound 12 cm x 5 cm x 6 cm obliquely placed on The back and lefT side and lower parT of The head, lefT lower parT of The occipiTal bone found cuT, lefT lower parT of The occipiTal lobe of The brain found cuT and exposed blood cloT presenT in The wound. 3) Incised wound 9 cm x 5 cm x 4 cm obliquely placed on The lower parT of The neck lefT side up To middle of The cheek. LefT side blood cloT presenT. 4) Bruise 2.5 cm x 2.5.cm pink in colour on Te upper parT of The righT cheek. 5) Bruise 4 cm x 3 cm pink in colour on The forehead righT side 1 / / i I I / h f 9) Pudmu Kumar'i (PW-5L sfep sisfer‘ o The deceased and sisfer' of The appe!km'r, Sashikala (PW-4), sfep mofher of fhe appellan'r are eyewi‘rnesses who wi‘rnessed ‘rhe incident Podmo Kumari deposed The? she and deceased Bhunda @ Shivkumar were ea‘l’ing 9mm si‘r‘fing by fhe side of ki’rchen furnace, ai' Thai Time, appellanT came There uTTering fiIThy words, Took Basula (carpenTer axe) and sTarTed beaTing Bhunda @ Shivkumar by ThaT axe. She ran away from There raising ouTcry and informed her sTep mo‘fher. She came back along wiTh her moTher and They saw The appellanT infiicTing injuries on Bhunda @ Shivkumar by carpenTer axe. 10) Sashikala (PW—4) in her sTaTemenT deposed ThaT she IIT earThen lamp inside The room adjacen'i' To sTreeT and was waiTing There due To rain, Padma Kumari was crying ThaT Lakhan is assaulTing Bhunda @ Shivkumar wiTh Basuia (CarpenTer Axe) came running from The Saw house, Therefore, she rushed To The house andzThaT Lakhan was assaulTing by Basuia To Bhunda ® Shivkumar who inspiTe of her requesT did noT sTop beaTing Bhunda @ Shivkumar. She wenT To caii her husband and when she came along wiTh her husband To The spoT, ' They saw The appellanT siTTing in The courT yard wiTh dead body of The deceased Bhunda @ Shivkumar. ThereafTer appellanT Took The dead body To verandah of Radheyshyam, elder broTher of her husband and lefT iT There; Then she Took The body inside The room. 11) BoTh The wiTnesses {Sashikala (PW- 4) and Padma Kumari (PW-5)} have been cross ekamined aT lengTh. ExcepT some minor P) discrepancies, no’rhing has been broughf on record. On close scrufiny of The sfa‘remenfs of both The wifnesses, fhere appears noThing To discredi‘f ’rheir' version. Padma Kumari is fhe real sisfer of appeiianf. She has no animosify To falsely impiica‘re fhe appelianf in The crime. Sashikaia is moi'her- of The deceased and sfep mo'rher of fhe appellant She also has no reason To falsely implicoTe The appellanT in The crime. 12) Shyarnlal (PW—3) in his sTaTemenT deposed ThaT on The daTe of incidenT he wenT To borrow money from Thakur. From There, when he was reTurning, he saw his wife coming running Towards him crying "mar da/a, mar da/a"; when he enquired, she Told ThaT Lakhan killed Bhunda @ Shivkumar. He rushed To his house and saw The appellanT keeping Bhunda @ Shivkumar he Tried To Take his cusTody, buT could noT succeed. AppellanT carried The dead body To his elder broTher's house and dropped iT There, beg his pardon and confessed ThaT he killed Bhunda @ Shivkumar. Radheyshyam (PW—8) who is, elder broTher of Shyamlal, in his evidence deposed ThaT appellanT carrying dead body of Bhunda @ Shivkumar came To his "Parchi" and puT The dead body There and beg pardon wiTh his faTher, confessing ThaT he killed his sTep broTher. Manharan (PW-9) in his sTaTemenT corroboraTed ThaT appellanT confessed ThaT he killed Bhunda @ V Shivkumar. Their evidence does noT suffer from any infirmiTy which may discrediT Their version. 13) FIR - Ex.P/8 was ‘proved by Anandram (PW-7) and NL DhriTlahare (PW—10). From‘The evidence of Puniram Kashyap —'1 / K l @ and NL Dhrifiahare (PW—10), i‘r is proved Tha‘r from The place of ’ incidenf car-pen'rer axe was seized and affer' ge‘r'ring removed The banyan from fhe body of fhe appellant if was also seized. Seizure memo is Ex.P/3 and Ex.P/4. From The evidence of NL Dhri‘riahare (PW-10) and Dr RK Upadnyay (PW—13), i1- is also proved Tha‘r The weapon of offence was sen'r for examinafion To The Medical Officer’ Dr RK Upadhdhyay who examined The axe opined ThaT The injuries . found on The body of The deceased may be caused by ThaT weapon. From The evidence of NL DhriTiahare (PW-10) iT is proved ThaT seized conTrol earTh, blood sTained earTh; carpenTer axe and banyan of The appellanT were senT To FSL for examinaTion vide applicaTion EXP/16. Ex.P/24 is The reporT of AssisTanT Chemical Examiner; from ThaT reporT iT is proved ThaT blood sTained earTh collecTed from The spoT, carpenTer axe seized from The spoT and The banyan recovered and seized wiTh appellanT were sTained wiTh blood. 14) STaTemenT of eyewiTnesses Sashikala (PW—4) and Padma Kumari (PW-5) is corroboraTed wiTh FIR — EXP/8. Medical evidence of Dr RK Upadhyay PW-13 and his reporT is Ex.P/20. ExTra Judicial confession of The appellanTA before his faTher Shyamlal PW—3 and oTher wiTnesses, blood sTains found on The banyan of The appellant from all These evidence iT is esTablished and proved beyond doubT ThaT auThor of The injuries found on The body of deceased Bhunda @ Shivkumar was The appellanT and as a resulT of Those injuries, deceased insTanTly died on The spoT J \/ / ( l \ 3.5) In cross examinafion of Vijay (PW-1), if has been broughf fhm‘ appeHan‘r was faken befo r'e a Baiga for Trea‘rmen’r as he was gai'na (whimsical). Amndkumar (PW—7) and Radheyshyam (PWWB) dso in cross examinafion admi‘f Tha'r for freai’menf, appellan‘r was faker: To a Baiga of Mouhadih. Shynmbl (PW-3) is fcx‘i'her of The appeHanT who gave explanafion To a” These versions. He deposed ’rhm‘ appellanf many Times was sleeping off, when he was going To graze fhe buffaioes. Therefore, Shyamial assuming Tha’r 1here was some wi‘rchcmfT wiTh Lakhan, Therefore, To clear his doub‘f abou‘? witchcraft he was faking Lakhan, 1’0 a Baiga for Trea‘imen’r. $hyamia! has very specifically denied ThaT The appellan‘r was suffering from any men‘ral disorder. Vijay Kumar Tiwari (PW—1) also says Tha‘l' he did no? know whefher appellanf was menially sick or not a1“ The Time of incident Radheyshyam (PW—8) also denies Tha’r on The da’re of incidenf appellan‘r was behaving like a lunafic‘ From all fhe above evidences broughf on record, if is clear ‘rha'r appellan’r was faken To a Baiga by his faTher To remove The doub‘l’ regarding wiTchcrafT, because of his behaviour of sleeping ouTside. From The evidence on record, iT is also esTablished ThaT jusT before four monThs from The daTe of incidenT, appellanT was married and was leading a married iife. There is no evidence To show ThaT The appellanT was menTally sick or was of unsound mind a’r The Time of incident i6) During The Trial on 25.08.1998, an appiicaTion on behalf of The appellanT was filed sTaTingqThaT his menTal condiTion is noT 1 a / i i 55‘ 10 good, fherefore, he be examined. Learned frial Cour-f made quesTions To The appellonf and was convinced from his reply Tha‘r he was no‘r menially sick. Despi‘re fha‘r, issued direc'rion Thcd- in case appellam‘ suffers from any ailment he should be properly ‘rrea‘i’ed. As a resui‘i of *i'he Cour'r's direc‘i'ion, appelian‘l‘ was sen'i' To The Medical Officer . for checkup who affer examinafion opined Thai he has mild anxie‘ly in fhe pas? and does no? suffer from any major psychia‘rric problem. From The examinafion of Trial Couri', as well Medical evidence, i'l’ was eviden‘l’ Tha‘l’ affer The inciden‘l' appellant does noT suffer from any psychia‘l‘ric problem. From fhe evidence led before The Cour-Ti iT was esTablished ThaT on The daTe of incident appellanT was no‘r suffering from any menTal disorder. Earlier To The incidenT, appellanf's behaviour and conducT were noT brough‘l‘ on record To esTablish ThaT .prior To The incidenT appellanT was suffering from any menTal disorder. Prior To The incident afTer The incidenT and during The Trial, iT was noT proved ThaT appeilanT's behaviour and conducT was like Those who suffer from any menTal disorder. 17) For invoking The provision of SecTion 84 of The IPC, iT is necessary To esTablish ThaT The appellanT, by reason of unsoundness of mind was incapable of knowing The naTure of The acT ThaT he is doing eiTher wrong or conTradicTory To law. Under SecTion 105 of The Indian Evidence AcT 1872, burden of proving The exisTence of circumsTances bringing The case wiThin any of The general excepTions is upon The appellanT and in absence of ThaT, The CourT shall presume —"‘) i r 1F 11 The absence of such circums‘mnces. However, The burden of proof upon The appellan? is n01“ higher fhan 'rhm' of The parry To civil proceedings. Even if fhe appellanf was unabie To esmblish conciusiveiy ‘i'ha‘r he was insane aT the Time The nffence was commi‘Hed. He oughf To place evidence before The CourT To raise reasonable ‘doubT in The mind of The CourT as regards any of The ingredienTs of The crime. 18) Here, in The insTanT case, only circumsTance broughT before The Cour-T in supporT of appellant's insaniTy is ThaT he was Taken by his faTher To a Baiga for TreaTmenT; buT his faTher clearly gave explanaTion To iT, ThaT he has some doubT regarding wiTchcrafT played on The appellanT; Therefore, he Took him To Baiga for removal of his doubT and To TreaT againsT The wiTchcrafT. Hence, earlier To The incidenT appellanT was insane or was suffering from any menTal disease To raise any reasonable presumpTion, There is no evidence. As regards oTher circumsTances and ThaT available on The daTe of incidenT are ThaT appellanT was married jusT before four monThs before The daTe of incidenT and was leading married life, AppellanT did noT behave like insane or a person of unsound mind; To esTablish iT clear and cogenT; evidence has been broughT on record. AppellanT killed his sTep broTher, Therefore, in presence of people, he prays for pardon. NoT only he requesTed his faTher To pardon him buT also confessed his guilT. On The daTe of incidenT his behaviour was noT such ThaT may oreaTe any reasonable apprehension regarding his menTal sickness. AfTer The incidenT and durino The/Trial, he was l / 1 ; 12 examined by The frial Judge, as also by ‘rhe Medical officer, but was no‘r found suffering from any major psychiu‘rr'ic problem or unsoundness of mind. Therefore, i? was neiTher esfablished nor presumed Tha‘r appeHan‘r was suffering from unsoundness of mind or was incapable of knowing The no‘rure of The acf commi'r'red by him. 19) From The medical evidence iT is clear ThaT appellonf wiTh a deadly weapon i.e. carpenTer axe wielded injuries on head, face and neck of Bhunda @ shivkumar. Injury over head was grevious, bones were broken and cuT. The naTure of injury caused To The deceased, place of The body where injuries have been caused and The weapon used by The appellanT clearly esTablish inTenTion of The appellanT To kill Bhunda @ Shivkumar and from The oral evidence of Sashikala PW- 4 and Shyamlal PW—3, iT is clear ThaT appellanT afTer birTh of The f deceased was viewing his birTh wiTh an angle ThaT he is one of The claimanT in his share of properTy. Therefore, from The evidence on record, iT was esTablished ThaT appellanT inTenTionally in a gruesome manner, killed his sTep broTher Bhunda @ Shivkumar by causing various injuries wiTh a deadly weapon - carpenTer axe. 20) Learned Trial CourT afTer close scruTiny of The evidence, righTly hold ThaT appellanT is noT enTiTled for proTecTion under SecTion ’ V84 of The IPC and has inTenTionally killed Bhunda @ Shivkumar by wielding injuries wiTh carpen‘l'er axe. 21) We are of The considered opinion Tha‘l' The finding, convicTion and senTence passed by The TriaL/Cour'l' does noT suffer f x '13 from any infirmi‘ry which may call for- any inferfer'ence by This Cour? in ifs appellan‘r jurisdiction. Therefore, fifrgggwswgww dismissed and is accordingiy dismissed. f r i i Sd/- Sd/— Fakhruddin \i>//”W \ ‘ V.K. Shrivastava u Judge J r j. \ Judge padma i J