'^^set^, HIGH COURT OF CHHATTISCrARH ATBILASPUR APPELLANT: (InJail) RESl'ONDENT: Criminal Ap_peal No,5-17 of_2QQ6 \., Jogi Ram Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION HON'BLE SHRI R.N. CHANDRAKAR, J 3 , o.u^-e-e- Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge POSTFQR JUDGMENT ON 2^8-2010 sd/- Qhirendra Mishra Judge A HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal_Appeal No.517 of 2006 APPELLANT: (InJail) Jogi Ram, S/o Sita Ram, aged about 35 years, R/o Village Pendri Talab, P.S. Lormi, District Bilaspur (CG) . Versus RESPONDENT: State of Chhattisgarh, Through S.H.O. of P.S. Lormi, District Bilaspur(CG) Present: Shri Ravish Verma, counsel for the appellant. Shri Arun Sao, Govt. Advocate for the State/respbndent. Division Bench: Hbn'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. JUDGMENT ^ (Deliyeredon-^August, 2010) The following judgment ofthe Court was deUvered by Dhirendra Mishra, J. l.;Thiscriminal appeal is directed against the judgment of convietion and order of sentence dated 31st March,2004 passed in S.T. No.453/2002 whereby learaed 2nd Additional Sessions Judge (FTC), Mungeli, Bilaspur, after holding the appellant guilty for causing homicidal deatli of his younger brother Prahlad @ Golu, convicted him under Section 302 lof the IPC and sentenced him to undergo iniprisonment for life and to pay a fine of Rs.1,000/-, in default of. payment of fine to furtherunderg.o additional R.I. for oneyear. 2. The case of the prosecution, in brief, is that on 15-10-2002 atabout 6 am the appellant had gonp to take his bath to his village pond. 'When his younger brother Prahlad @ Golu wenf to call him, at thaf juncture, the appellant assaulted Kim by club and caused his deafh and ran away to his home. Report Of the incident was lodged on the same day at 7.30 ani by Babulal, elder brother of the deceased against the appellant, ori the basis of which merg intimation Ex.-P/2 and FIR Ex.-P/l was recorded. After preparing inquest (Ex.-P/lS) over dead body, the body was sent for autopsy to Coramunity Health Centre, Lormi where Dr. Chaw Singh Patle (PW-4) conducted postmortem and gave his report of Ex.-P/5. \ .. ..„„,.-. 3. On memorandum ofthe appellant(Ex,-P/13), weapon ofoffence, club was taken into possession vide Ex.-P/14. The site plan was prepared by the 1.0. vide Ex.-P/19. 'Sealed packet containing blood stained full pant and T-shirt of the deceased received from the hospital was taken into possession vide Ex-P/23. Bloodstained and plain soil, weapon of offence club, wearing apparels of the deceased were sent for chemical examination to the FSL, Bilaspur. Report of the FSL is Ex.- P/26 according to which lathi'seized from the appellant and T-shirt of the deceased were found^ staifted with blood. The above articles were sent to the Serologist for confirmation of origin and group on the exhibits and as per-the Serologist's report (Ex.-P/28), T-shirtwas stained with 'B' group blood, however, origin could not be determined on the other articles on account of insufficiency for test. 4. After completing usual investigation, charge sheet was filed in the court of Judicial Magistrate, 1st Class, Mungeli, who in turn committed the case to the Gourt ofSessions Judge, Bilaspur and the same was received on trarisfer for trial by learned Additional Sessions Judge. : . : 5. Learned Additional Sessions Judge framed the charge under Section 302 of the IPC against the appellant who abjured his guilt. 6. The prosecution examined 14 witnesses in all. Thereafter stateinent of the accused was recorded in which he denied the circumstances appearing against him ia the prosecution case and pleaded innocence and false implication. The appellant also examined Dr. Sujit Nayak in his defence. ; 7. The trial Court after hearing learned counsel for the respeetive parties, convicted and ;sentenced the appellant as mentioned in paragraph-1 of the judgment. ,; 8. Homicidal death of Prahlad @ Golu has not been disputed. Even otherwise, froin the evidence ofDr. Chaw Singh Patle, who conducted :; pQSta'nortem, proved his report & noticed the followirig injuries on the person of the deceased & opined that the deceased died due to excessive haemorrhage from the wounds and mode of death is shock ] 8s homicidal in nature, homicidal death of Prahlad @ Golu is. established. \^ • Lacerated wound ofsize 3 x I'/a cm x bone deep over head above left brow. Bdne under injuiy was fractured. • Lacerated wound of size I'/a cm x 1 cm x bone deep on the left side of ttie head riesr external pinna. • Lacerated wound of size 13/4 x 1 crn bone deep over left side of the head atadistance of Syacmback toear. • Laeerated wound afsizg 2x 1 cmxbone deep oh the leff side of the head approximately at mid part. • Lacerated wound of size 2 x 1 cm x bone deep near left ear anteriourly on head. • Lacerated wound ofsize 2 x 1 x 1 cm on left angle ofmouth. • Lacerated wound of size 21/4 x '/a x Ya cm on right angle of mouth. i . . • ' ^ • Lacerated Wound af size 5 x 1 cm x bone deep just below chin. • Contusion bf size 6 x 2 cm left upper arm on the middle part. • All the injyries were ante-raorteni in nature. 9. The trial Court has relied upon the evidence ofeyewitnesses namely, Shivnandan, Asharam & Pyarelal @ Pande and held that these witaiesses have established the presenee of Jogiram on the place of the incident. They have deposed that they saw the appellant drowning the deceased by keeping one stone on his chest and when other witnesses naraely, Babulal and Bedram reached there,fhey , took out the deceased from the pond and they fo.und number of injuries on his person. lAsUaram and Manoj Kuinar have deposed that when Prahlad @ Qolu was taken out from the pond, he was dead. Further relying upon the evidence of Babulal and SitaBai, wife . of the deceased, it has been Held that the appellantvoluntarilyrnade extra judicial confession ibefore thes^ witnesses without ariy pressyre or threat. Accordingly, it has befen held that the prosecution has established the involvement of the appellant in the crime in question ; beyond reasonable doubt. 10. On close scrutiny of the the trial Court, after evidence of the above wiCnesses, we find that eliaborately discussing the eYidence of these ^;t "^•^ ••^Se,^ witnesses, has rightly arrived at a conclusion that the prpsecution has proved involvement of the appellant in crime in question and the same is based on pfoper appreciation of the evidence available on record. Learned Counsel for the appellant could not assign any reason for disbelieving ttie evidence of above witnesses. ll.Learned counsel for the appellant has mainly questioned the finding ofthetrial Court whereby it has been held that the defence has failed to prove that at the time of committing the crime the appellan.t was incapable of knowing the ngture of the Act or that he was doiiag what .•^t ' . . ' . i' - • : .' was either wrong or coritr'aiy to law on account of unsoundness of mind and thus. the act coinrnitfed by the appellant falls within the general exceptions as rnentioned under Section 84 oftheIPC. 12:.While dealing with the above issue, it has been observed that the close relatives of the appellant did not apprise the Investigating Officer during investigation about any mental sickness of the appellant; the medical papers produced regarding treatment pertains to 25-3-2002 and 24-4-2002 and Dr. A.K. Gupta has not been exaniined as defence witness and the same were not given to the I.Q. during investigation. Froni eross-examination of the prosecution witnesses, this fact has not been established that the appellant was suffering from any mental sickness 2 days before the incident or on the date of the incident to the extent that he was unable to understand the consequences of his act, thpugh it: has been also , observed that from the evidence of Babulal (PW-1), hisrnother Titri Bai, Sita Bai and Bedram, it appears that on fhe date of incident or several days before the appellant had become raentally sick. 13.Referring to Section 105 of the Indiaa Evidence Act, it has been observed that where the accused takes the defence that hls act is covered within exceptions of Secdon 84 of the IPC, onus to prove this defence is on the accused. NegatijRg the arguments of the defence' thaf the appellant had |no motiv^ for comniission of the aforesaid crime, it has been observed thatwhere involvement ofthe accused iri the crime in question is ptherwise established,motive ofconimission of crime becomes irrelevant as the motive is known to the accused himself, as most often it is only perpetrator of the crime alone who -knows as to what circumstances prompted hiru fo commit the crime. ;14.Before dealing with the above defence ofthe appellant, we propose to deal with the legal pro\;isions in this regard. Chapter IV of the Indian Penal Code deals with geateral exceptions ofcertain acts which d6 not constitute offence. Section 84 of the IPC deals with act Qf a person of unsound mind which reads as under:- "Nothing is an offcnce which is done by a person who, . af the fime of doihg it, by reason of unsoundness of mind, is incapable|ofknowing the nature of the acf, or that he is doing what is e.ither wrong br contrary to law." . • - , : 1.5.8ection 105 ofthelndian Evidence Act, 1872 reads as under:- "105. Burden o{ provlng that case of accused conaes within exceptions.- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the ease within any of the General Exceptions in the Indian Penal Code, 1860 (45 of 1860) or witbin any special exceptiori or proviso contained in any other part of the sarae Code, or in any law defining the offence, is upon him, ahd fhe Court shall presume the absence of such circumstances. Itlustrations (a) A, accused of unsoundness of mind, he did not know the nature of theAct. The bur&en of Rroofis on A. the 16.In Dahyabhai Chhaganbh considering fhe burden insanity was taken by "The. doctrine of plea of insanity propositions: (1) reasonable doubf offence with the r< ' AIR 1964 Supreme Court .1563 raurder, alleges that.by reason of nbhai Thakkar Vs. State of Gujarat1, While of proof in a case of horoicide where plea of V.'"' •• . • . .'..•'...•••.'..'..•.••• accused, it has been held thus:- : : burden o&'proof in the context of the may Be stated in the following prosecution must prove beyond that the accused had comraitted the -eqyisite means rea; and the burden the UKiau,.-'. ; ./?;y of proving that always rests on the prosecution from the beginning fo the end of the trial. (2) There is a rebuttable presumption that fhe accused was not insane, when he cominifted the criine, in the serise laid down by S.84 ofthe 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 bim is no higher than that rests upon a party to civil proceedings; (3) Even if the accused was not able fp establish conclusivety that he was insane at the|tiiiie he committed the offence, the evidence placed beifore the court by the accused or by tKe prosecution miay^ raise a reasonable doubt in the. . inind of the court as regards, one br more of the ingredients of the offence, including inens rea of the accused and in that case the court would be entitled to acquit the accuseEl on the ground that the general burden of proof resting on the prosecution was not discharged." ; 17.In Mst. Shanti Devi Vs. The State2, the mother was prosecuted under Section 302 ofthe IPC for committing murder of her own child by cutting his neek by a^ razor. Accepting the plea of insanity raised by the defence within general exceptions undei- Section 84 ofthe IPC, if was observed- that it is difficult to prove the precise state of the offenders mind at the fime of the commission of the offence. Generally, a case in which the sanity of the accused is cailed in question, motivation for the crirae with which he is charged assuines unusual importance because; if a serious criine like murder is committed by a man, who had absolutely no rational motive to commit it, the plea of Mnsotindness of mind can be more easily? 2 AIR 1968 DELHI 177 established than in other cases. The absence of inotive assumes nof only unusual impbrtance, but al^o almost eonGlusive and crucial importance in a case where a mother had murdered her own child of a tender age. As a inatteroffact, in such cases, the act speaks for 'sM itself as the act of a ma.d woman; the act itself is intrinsieally the chief evidence of insanity; 18.In Ratan Lal Vs. The State of Madhya Pradesh3,the Hon'ble Suprerae Court followihg its earlier decision in. the raatter of Dahyabhai Chhaganbhai Thakkar (Supra) held that where plea of unsoundness ofmind is raised by the accused, the burden ofproving the same is on him. The crucial point oftime at which unsoundness of raind has to be prowed is the time when the crime is actually coinmitted. The burden of proving this can be discharged by the accused froin the circumstances which preceded, attended and followed the crime. Gorisidering the testimony of the defence witnesses, behaviour of tlie accused on the day ofoccurrence, failure of the police to lead evidence as to his condition wfaen the acGused was in custody and the medical evidence, that the acGused was irisane within themeaning of Section 84, defence pleawas accepted. 19.In T.N. Lakshtnaiah Vs.lState of Kamataka4, followingthe decision of the Supreme Court ini Dahyabhai Chhagaiibhai Thakfcar (Supra), it has been observed that in a case where the exception yader Section 84 IPC is claimed, the court has to considerwhether, at the tune of cominission of| the offence, the accused, by reason of unsoundness of mind, was incapable ofknowing the nature ofthe act or that he is doingwhat is either wrong or coritrary to law. The entire conduct of the accused, from the time of the commission of the offence;up to the time| the sessions proceedings comn-tenced, is relevant for the purpose of ascertaining as to whether plearaised was genuine, bona ficLe or an afterthought. 2Q.In Shrikant Anandrao Bhosale Versus State of Maharasfatra5, the Supreme Court, while considering the unsoundness of mitid for the purpOses of Section 84 of the Penal Code, has dealf wifh the characteristlc and dangers flowing,<'from paranoid schizophrenia., While extensively refer^ng to Modl's Medical Jurisprudence and Toxicology, relying upoh the decision in the matter of Dahyabhai ' s Cfahaganbhai Thakkar (Supra), it has been held that the state of ,^AIR 1971 SUPREMECOURT 778 i 4 (3002) -I Supreme Court Cases 219 ! 6 (2002) 7 Supreme Court Cases 748 ; ^ '^ mind of the accused at proved so as to get the burden of proof on theS; that which rests upon a the tiine of conimission of offence is to be benefit of exception. Further the nature ol' ,accused to prove insanity is no higher than party to civil proceedings. 21.From the evidence of mother; Babulal, Chand& all brothers were residm complete harmony and partition in the family. prosecution witnesses namely, Titri Bai, Bai, wife; and Shivnandan, it is elear that lang in separate roorus fhough there was no dispute between thein and there was no 22.PW-6 Sita Bai, wife ofthe deceased, has stated in para-6 that on the dafe of the incident also the appellant and fhe deGeased together went to pond to take bath. 23.In the FIR, it is mentioned that on the date of the incident the appellant had gone to take his bath and he was lying in the pond. When his younger brother attempted to bring him out, the appeUant snatched his club and assaulted him and caused his death. After the incident, the brothers of the appellant apprehended. him so that he may not harm others, as hismental condition was not proper, as he hadmurdered his brother. In his diary staferaent Ex.-D/l, he has referred the appellant as Tagla" (mad) as proved by the 1.0. L.S. Kashyap (PW-13). Iri the iirst information report also, the complainant had mentioned that fhe appellant somedmes behaves like a mad person. This witness has also stated that Chanda liai inforrhed Babulal that"Pagla" was assaulting Prahlad and, therefore, the appellant has been referred as "Pagla" in Ex.-D/l. 24.PW-3 Shivnandan has also deposed that in the village, Jogiram is called as "Pagal" thoughl he came to know that he ismad only aft.er '..••the ineident. . • I \; '. . 1 '. .':. ; . ; 25.PW-7 Titri Bai, mother 6f the appellant and the deceased, has also deposed that her son occasionallyjUndergoes fit of insariity. She has produced the medical papers (Ex,-P/9 8s Ex.-P/lO) whereby Dr. A-K. Gupta, Neuro Psychiatrist, has examined him on 25-3-2Q02, 13-4- 2002, 24-4-2002 & 4-5-2000 andprescribed certain medicines. ^ These two prescriptions have been taken on record on being, II^^i E ^;1 produced by Titri Bai at the time of her deposition. However, this witness has not been examined. \, :'•....;•' 26.From the documents availahle on record, it appears that as per the directions of the trial Cburt, the appellant was referred to Medical . College Hospital, Bilaspur for examination by any expert psychiatrist. He was examined by Dr.| Sujit Nayak (DW-1) on 8-2-2Q03 and 25-2- 2003. This witness has deposed that on exainination ofthe appellant he found spme syniptoms ofpsychic disorder. The opinion was based on interrogation of the ipati.ent, however, for final opinion he had advised that opinion of| hi'S faraily members would be necessa'ry. However, faraily rneinbers "were not produced and Bnally, he had referred the patient to Medical College Raipur vide Ex.-D/6. The patient was examined in the OPD of Medical College, Raipur and in the finat report dated 2];-4-2003, it is mentioned that the patient is not suffering frommental Ulness. 27.The circumstances that stand proved in the instanf case are:- • The appellant and the deceased are real brothers and there was no animosity between them. They along with the compla.inant resided at the same place in separate houses. | On the date of the incident also, . : both of them went ^ogether to pond to take their bath. • The appellant had history ofmental illness and he was treated by Psychiatrist in April, 2004. He was called by the villagers as well as his family members "Pagla". • He suffered periodic syraptoms of insanity. The symptoms of insanity were observed 4-5 days before the incident when his mother was advised by the yillagers to keep him in tied condition, however, she did not follow thetr advise. • After the incident also, he ^as tied with a pole by rope so that he may nofc harmothers. 28.The trial Courtin paragcaph-43 of itsjudgment even after observing that frora the evidence df Babulal (PW-1), his mofher Titri Bai, Sita ~ Bai and Bedram, it appears that on the date of the inGident or 2 days 10 ^ preceding therefrom, the.appellant was mentally insane, referrin'g to report of fhe Medical College, Raipur, it has been held that fhe appellant was not suffering from any kind of mental siekness and the appellant himself has not pleaded in his examination under Section 313 of the Cr.P.C. thatiie is suffering from any mental sickness and, therefore, plea of defencei in this regard has been rejected. 29.0n close scrutiny of the evidence available on record and.pn the basis of cireumstances detailed in the foregoing paragraphs, we are of the opinion that the appellant has proved existence of circumstances as ^ required by Section 1Q5 p^the E^idence Act so as to get the benefit of Section 84 of the IPC. and. we find that the prosecution has failed to establish the element of mens rea and the appellant had acted on account of unso'undness of mind because of which he was incapable of knowing the nature 6f the act or fhat what he was doing was wrong or contraiyto law. 30.In theresult, the appeal is allowed. Conviction and sentence. imposed upon the appellant under Section 302 of the IPC are set aside and he is acquitted of the said charge. The appellant be set at liberty forthwith unless required to be detained in any other case._ __ Sdj- Dhirendra Mishra Judge Sd/- . R.N. Chandrakar Judge .i'