1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Kishna Ram vs. State of Rajasthan D.B.Criminal Appeal No.1002/2006 against the judgment dated 14.11.2006 passed by Additional Sessions Judge, Barmer, in Sessions Case No.47/2002. Date of Judgment :: 12th March, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Pradeep Shah, for the appellant. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By judgment dated 14.11.2006, passed by learned Additional Sessions Judge, Barmer, the appellant is convicted for the offences punishable under Sections 302, 323 and 341 Indian Penal Code and is sentenced as under:- 2 341 IPC : Simple imprisonment for one month; 323 IPC : Simple imprisonment for six months; and 302 IPC : Life imprisonment with a fine of Rs.10,000/- and in default of payment of fine to further undergo simple imprisonment for six months. As per written report Ex.P/1, one Shri Heeraram on 15.7.2002 reported at Police Station Dhorimanna that at about 11:00 AM on the same day his daughter Smt. Kesi met him on way from Dhorimanna to Mithada. While weeping, she stated that her husband Kishna Ram was standing below a 'khejri' at the time when she was going to the fields from dhani with two of her sons Mahesh and Vikas. Kishna Ram stopped them and tried to strangulate Mahesh and Vikas. On crying, Kishna Ram gave a 'kudali' blow to both the boys as a consequent they lost their lives. On basis of the information aforesaid a case was registered and after completing investigation the accused appellant was charge sheeted for the offences under Sections 302, 323 and 341 IPC. The case was committed to the court of Sessions and the same was tried as the accused appellant denied the charges. The sole contention of learned counsel for the appellant while challenging the judgment impugned is that the accused was not in sound state of mind and, therefore, the act done is not an offence in view 3 of the provisions of Section 84 IPC,and the trial court failed to appreciate this aspect of the case properly. We have considered the argument advanced and also examined the entire record. The findings given by learned trial court are mainly based on the statements of PW-2 Kesi, PW-3 Mohan and PW-6 Bagta Ram, who are the eye witnesses. The trial court also reached at the conclusion that whatever stated by the eye witnesses is sufficiently corroborated by the medical and other scientific evidence. PW-2 Smt. Kesi is mother of two deceased boys Vikas and Mahesh and is wife of the accused appellant. As per PW-2 Smt. Kesi, at about 08:00 AM when she was at her hut, Kishna Ram abused and tried to misbehave with her. She then carried Vikas in her lap and proceeded for fields with other son Mahesh. At about ten steps ahead from the hut, Kishna Ram came and stopped them. He first snatched Vikas from her lap and threw him on land. He then tried to strangulate neck of both the boys and on crying he gave 'kudali' blows to both the boys, consequently they died at the spot. She also stated that Kishna Ram also snatched ear rings from her ears. 4 PW-3 Mohan also supported the prosecution case with the statement that at about 08:00 – 08:30 AM he was present at Lakharam Ki Dhani, wherefrom he saw that Kishna Ram was abusing his wife and then when his wife proceeded little ahead from her hut he gave 'kudali' blow to children Mahesh and Vikas, consequently they died at the spot. PW-6 Bagta Ram also stated that Kishna Ram killed his two children by giving 'kudali' blows and he saw the entire incident from his hamlet. PW-19 Dr. Shyam Sunder, who conducted autopsy on the dead bodies of Vikas and Mahesh approved the postmortem report, according to which the cause of death of both the deceased boys was shock due to head injury. The 'kudali' was recovered on 15.7.2002 itself on basis of disclosure statement made by the accused appellant and as per Forensic Science Laboratory report Ex.P/36, the 'kudali' was found to be stained with “B” group blood and, thus, matched with the blood stains found on T-Shirts and Nikkars worn by deceased children. On consideration of entire evidence available on record, we are in absolute agreement with the conclusion arrived by learned trial court that the 5 children Mahesh and Vikas died as a consequent to 'kudali' blows given by accused Kishna Ram. As a matter of fact, as stated earlier, learned counsel for the appellant also not much disputed this position, but argued that the accused is entitled for acquittal being the case falling within the exemption prescribed under Section 84 IPC. As per learned counsel DW-1 Dr. G.D.Kulwaal found the accused suffering from psychosis and he prescribed anti-psychotic drugs as a part of treatment. Learned counsel also placed reliance on the statements of DW-3 Dr. Surendra Raj Bhandari who also stated that Kishna Ram was suffering from psychosis. Reliance is also placed on the statement of DW-2 Shri Ram son of Kana Ram, who stated that Kishna Ram was suffering from some mental ailment and for that purpose he underwent treatment at Barmer and Dhorimanna. We have considered this argument of learned counsel for the appellant. True it is, that DW-1 and DW-3 stated that the accused appellant suffered with ailment of psychosis and received treatment from them, however, what was the period and what was the total effect of the disease, nothing in this regard is said by these witnesses. It is well settled that in order to get the benefit of exemption under Section 84 IPC, it must be shown that the accused suffered from unsoundness of 6 mind as defined at the time of commission of offence, which in the crucial point of time. The insanity of the mental disease should exist at the time of commission of offence. No evidence is available on record on basis of which it can be said that the accused was suffering from any mental insanity at the time of incident and he by reason of unsoundness of mind was incapable of knowing the nature of the act and that he was doing either wrong or contrary to law. The eye witnesses in quite unambiguous terms supported the prosecution story and none of them in any way found that at the time of incident Kishna Ram was suffering from unsoundness of mind and was incapable to know the nature of the act committed by him. In such circumstances the defence taken on behalf of the accused is of no consequence. The appeal, for the reasons mentioned above, is having no merit and, thus, is dismissed. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.