SJnglffBendi IN inE: HIGH^^QffiRl!i@FS<!;HilM'I'll^^ •cRHafiit^aiiK^^wffi'i^fflg-B/^oioi^ APPELLANT <p)^Sv^ ^- iJRSmDENT w ;Bul£h:lal.;sc»rr^()g[aaSian'CHandra, ^'ag^&^oijXffSfyearSfiKfo village... ll^a^ai^^Roli^StafidrhtJaijaiRur, ?I3iStncJt;38n]gir^(3Baii[ipa; [G.0.]. ^BiBSUS; ^State;'oJ|©|Ei:]Sttt^^;t-Hi-&.; - ; :: • • f^TBrougIW^EeeJSIatTO aipur, ;'-I@tTiGf|Iag§gu:||@|KS|n:tga;[C.<3.]., ®RmtNAt!^EEi£flU[jaja;ER^]®Ea®@>]Nj ]2]gE]tt'i©RIMINAL |:^JBSSroB]KEt@§iB^.ti WS^iS'i WI61-1 Q3URT OR CHW-4T73S&<tRH AT BILASPUR Cr. ADDeal N0.100/Z006 Single Biench: Hon'ble Slwj Oilip Raosafieb Oeshmykh. J. •7W~.' '/.-•.' '.'.'.,'.' :.' . • .' ' " Sukhhl Ys. State of Chhatl'isgarh Post for order -KB^.C'*' Sd-/ • DUip Raosaheb Deshraukh Judge ^r1^3^^S^^rif;.i^SJK^j^i<S^^r"^R:r;;lTS ""i*i"''i"yiA.<sa' N1.1;'r^SS! '.'M:"'fK^ :l.:KIrjS:? ^ '^•1 Mii ^MI6H COURTOR CHHAT-nS6ARH AT BILASPUR Cr ADBedlNo IOQ/2006 Sjftalie fench: Hon'ble Shri 6ilip Raosaheb tteshmukh. J. Sukhlal •v§. '" ; .1 • . • . StorteofChhattisgarh RftESeNT:- : -: ., . ..<:..': : . ' • Shpj^ Sl'i&ilendi'a Oubey, learned counsel for thesacfcused-cypetlant. Shri^lSHm^ BttjaJ/S.AyAddl.Publi&PrOSecutorfortheStffte. JUD6MENT (Deliveredon 6-04-2006) Thisappeat is directed ogainst -Hie jydgment dated 10-01- 2006 clelivered by Shri A.K.Pradhem, ledr^ Judge, Sakti, Distr'ict-BildsRur in SesswinsfJCaSfs MoAl6/2Q whel'eby the appetlant wds convicted uhder Section-307 of IPC and sentenced to undergo rigbrbus imprisonment foir'Syears and fineof ^s,5;000/- dnd in defdult to undergo aclditiona! rigorous ^iinprisonfflentfor 5month^. . zi^ The factuat ^trix of the cc^ is thirron^^^^ aiipellant i was present in •the grocery shop in Village-Tushar, Potice iS^atiOn-Jflijaipur, District-Janjgir Champa along with his daughter |a^)ed abouf 11 years. Aja/KumarGhdndraPW-t.a boYagedabout tl ly^irs leanie there ot about 05.45 AJW. for ^- 250 grams pSO " SU^BK i i^appellan»crfterweighingthe^giw^«^ t- f|^A^ay||(umarPW4whopcudRs.5/-totheappellcOTt.^^S^ the illant d|id not have chan^e, Ajay Kymar askecl "for a gutka poucH; |1||!|1 SSvSK it'SWf \'ii; ^,:V.i '-31.:.-. ^ ?M ;-3-^d '°-<P"D43 ,ureMnclnlfiil Aq •Wd SO'ZO +° (•S-WKOj ynd^ig. 'aS^jss |D3ipavy j.o aOT.i+SU]; t).ni6s!44Dt|i|3 fti. affi+sj Snoiaspjooun UD yi ps^^i^ SPM i^j xupuo^ jiw AoTy 'Si i •4.u3Ui36DUDUi^ai^|.jnj.ajpoipaaiiU! papaau- 'sispo ai|4. .^014). pai.ou 9-/%(j uoDJf)-|^ •><q •oduiDL|3-Jj6fuD['[ '|t4jdsoH 4.3!>i+S!C) ®i+t+» uoiujdo 4.^ad>ojoj. .i.sjiDiosds "l"lNr3 puDi ^si|Di3acfs |D3i6>ins 0+ ps'i-'sj-s-i srw T-^<j DJPUD43 •)Diun)j /Dpy ••^ •+3arqo 4.un|q' puo pJDi|f7(q pasnos cl|i»s j.o uoiBaj p+auDd o+sod +J.a| si|4. uo ^ x »a x »& 1 6uipa3|q i|4.im suoq d|D3SQ4. dsap punoM pa+iyaopi suo (8) •+33rqo +un|q puo pjDi| Aq pssnos ^ua pLua+xa +46!g j-o 3|ppjiu 31)4. 04. L|4.noui j.o ajBuo 4.L|6jj 3L|+.uioJj. ^OMO ^ paoi^d^'{Xn9 •loaI'oi-ua+xa 4-461^j.oaippiui 3L|4. uo 6yipaa|q pup Uoi.j.D.iagpi L|4.jM uoisn+uoa 6uo| •auQ (y) -saunfui 6uiMO||o^. 31)4. punoj. a|-| •SUI+IUIOA j.o ^io+si^ IJ.I.IM uoi+ipuos snojosuoa-jtuas r • ' . : •' • - . .; D ui sq 0.1. uij4 punoj, puB Aop siuW 31)4. uo "W'V Sfr'ZO •••°.iDiun)) /Bry psuiuiDxa 9-Md '•'"droHof '3^4.ua3 L|4.|pa|-| ^biui^j 'jasij.j.o |D3ipavV 'uocJfi-Di •jg 'Z-d'x3 3P!A asuajjnoab j.o aoo|d ai|4. lUo^j. •w^ g 4.noqt> pa+Dntis jndiDrjoj'-'s-d ui •yrj pa6poj A|a).x)jp3Uiiui g-Md tupuot|3 ui&inqnipj •s+noL|? Sui^Dai) uo pa|c|uissso +uo||addD 31)4. j.o^ jaiLj+oui 'S'Md !08 !J+!ADS 'fr'Md !°8 U!+'IDIP8 'B-<pul°43 uDUin)) /»ryj.ci^iaisis 'E-Md i-1Diun)l uoyy pUD.ot4|JOj.puDj6'2-/^() Bjpuo^^ ununqntDl •£ •snoissuoaunisuiaaaq o.1puDi)3 jouin^ /rfy •poa^ 314). j.o apis ^.j.3| 31)4. uo OS|D puD «ioa.|.t)6u 31)4. uoau uiit) +14 "9"X S J-0 (++D8) 4-l|6!aAU0-'! ul' 6y!44-!| PUD Ru"9d6 a44. uo JDUID)| A»Typaipnd 'pafiojus +06 A|U3ppns .|,uD||add!0 at)4. 'siji.j+ uodf) 1!; !!]1 tiM cM /3- lillll immecliately put on lifesaving drugs omdI.V. Fluid ond treatment was given. On 03-05-2004 Ajay Kumur Chandra did not regain consciousness and he had 3 to 4 episodes of vomiting atong with convulsions. Qn 04-05-2004, C.T.Scan of head was done which revealed vide repopt Ex.P-19(A) Cerebral parenchyma showin9 small extra dural hametoma at left parietal, superiorly. Till 06-05-2004 Ajay Kumar Chandra did not regain consciousness and was restless. He was semi-conscious on 07-05-2004 & 08-05-20)4 but was restless. For the fiTfst tirhe on 09-05-2004 Ajay Kumar Chondra regained consciousness and ifhis health status continuecl ti II 12 & 13-05-2004. On 13-05-2004 Ajay Kumar Chandra was discharged from the hospital on request. Upon discharge, the historyof the injury wds gjven as head injury dye to assault byBatton 03-05-2004. On the date of iricident on being proclyced by the appellant an iron wei9ht of 5 K.(5. was ^ized videEx.Psl4.0n 03-05-2004, Phin soil and btood stained soil were also seized fpomthe place of occurrence vide Ex.P-13 and sentto the Forensic Science Laboratory, Raipur for e^amination. Vide report dated30-10-2004, presence of blood on the iron^weight of 5 K.6. Article-C and blood stained soil was confirmed. 6, In repty to a query, Dr.Kl-Uraon PW-6 opined vide I Ex.P-5 that the injury sus'tained by Ajay Kumar Chandra could be caused by the iron weightssized from theappellant.l-le furHier opined Jthdt if immediate tr^atment was notgiven, death of Ajay Kumar Cihandm was possible. After completion of investigation, the flppelkmt was prosecuted under Section-307 of IPC. The oppellant abjurted •fl'le guilt and pleaded that at the time of occurrenee his mi^ld was -r u •!li ,SWII •m .<?,: imbalanced. The prosecution examined as many as 13 wi-tnesses. No eviclence in defence was adduced. The tedrned trial Judge relying upon the evidence led by the prosecution convicted and sentenced the appettantos aforesaid in para-1. 7. Shri Siailendro Dubey, leamed counset for the appellant has argLied that on the date of occurrence, the appellant was upersoitof unsouhd mind. He pointed out to the report dated 25-02-2005 sent by the Professord " Head of Department of Medicine, Dr.B.R.Ambedkar Memorial Hospital, Raipur that the appellant who was admitted in the psychiatricWardon 07-02-2005 wasdiagnosed to be suffering fr-om psychosis after detailed examination and observation of ward behaviour. The testimony of Ajay Kumar Chandra PW-1. Aton Kumari PW-Sand 5avitiri Bdi PW-5was referred while arguing thatsince 5 to6 years priofto the dateof occurrence, the mental status of the appellant was no1" norn'ial. It wos tfierefore contended that since the appellant, af the time of occurrence, by reason of uhsoyndness of mind, was incopdbte of knowing -the nature ^-khe.' \ . .; . ,/: ,. . . of^act ort+iat what he is doing is either wrongor contrary to law, he was entitted to the benefitof Section-84 ofIPC. 8. It was also contendsd that no /nefl^/iea hcs beenattributed by •the prosecution to theappellant for assautting Ajay Kumar Chondra with cn iron weight. Thisatso showed that the appellantwflis aperson of unsound mind ot the tjme of occyrrence.No evidencewa^ .led by the prosecuTion t6 prove that the appeltoint had assaultect Ajayl famar Chandra with an iron weight.In the alternative, it wo^ also contended -that the injuries sustained by Ajoy kumar wasnotd SS VSSS!!S:iS£,SS- ;ill ! ] •- '.. .^p[i^o;:>, t|4.oap 6uisno3 j.o uoi+uai.uj 3i|4..|flt|4. 6um6.n»| a|ji|M •^921-'IJni°3 jaui^idns-^oz- 'y'I' V "! pat-iodai wpy^c'y ^o 94SfS •SA VWS "V " ~ : - . .. . ^- ^oi^ uo' pa30|d OS|D SDM a3UDj|ay -puiui pynosyn j.o, gDm 4.uo||addo 331)^ .j.Dl.tl. MpljS fl^3iy 0!?C^ 4.QU p|nOM 'pjp 31) t]3jt|M U! jaULfeUI 31)4. uj|4|t|6j3M 0041344. I|+IMI^J D^puoi|3•^wn^^ ay^ M^ osu st/am uo SAi+oui AUD s6|nA!p 4.ou pip g-^d ujpuotj^ uiodnqniDl .10 i-fi/{^jowny^ /afy 4.t>t)4. +30^. auaiu ai|4. +D4+ papua+uos osp SOM +1 '912-4*1003 auojdns-^gt-'y'I'y ui pa+^odai Ifsapihi^ oAifpoyf fo 94.04.$ 's^ nt.OAy {WOAQ uo a3iroj|aj BuisDic) •A | 04. Auu+uos >io GUOJM .oi|+is si Buiop si ai| +04M +OL|J. jo vm fo ajn+ou at(4.6ujMOU>| j,o a|qBdo3ui uosjad at)+ 3>|DUi O+SB i|3nSsDMpujiu j.ossaupUnosun ai|4. +044. UMOL|S sq +sniu +! '3cjl 8141. ^.Q ^g-uoi^as fo ^qwo av^. tA\tft.iM t3»8t|4. 6u;jq (4 so os puiui j.o ssaupunosun a4.n4.j+suo304. ^ap^oui.iJBiJ.I.! pan6.in som +1 '/+!t!qi>j| |ouiuii^3 uiouj. UIIL) a|.ojauoxap|nomt|3jt|mA|,juDsuip63| SP pauija4. aq UD3 tjoiijftipuiui^o ssaupunosun L|3ns UKMJ. Cui.isj.j.ns SDM ai| asusj.j.o at)4. f.o uoissiuiuios j.o 31U14. 31)4. 4-'o +04+ SAOJd 04. pasnsso 91)4. Aq p3| SDM asuapiAa o(\| •pasnoso at|4. up A|sj!4.U3 SDM aoua^.j.o 31)4. j.o uojssiiuuioo at|4. j.o 3U114. 3t|4.+° puiui ^.o ssaupunosun jo A+IUDSU! BuiAo^dj.o uapjnq 31)4. 4.0t)4. p3pua4.uo3a|-|-4.uaiu6pnrpau6ndiU! 341. J.6 .+joddns ui psnGuD SDt| s+tooApv+AO^ paujoa| ribfog t|Sauns uijs 'puot) jat|4.ost|4. UQ •g •ui!4 Aq auoS^spun AposJ|D o+ pssnpaj aq p|noi|s j-uo||®ddDai|+ o+ pspdDMO asus^uss at)+ +Dt|4. psn6jD |asunps> pswoaj '+uD||addD at|4. .j.o sn+o+s ID+USUI at|4. Suuspjsuo^ •3dl j.o ^gg-uoi+sas puoAsq ISAOJJ. 4.ou pip 4.uo||addp ai|4. Aq p34-|.!Uiiuo3 AUDJ.I aoua^o at|+ 'aio.j.ajsL)4. puo 3(jj j.o oze-UOj+o^ j.o sjs+aunajod si|4. j.o Auo ui t|+!M ||D.). 4.ou pip Xatji. souis A.inru! snoAaMS )!.ill!: :i! l!! tnKKn£iSy;aS ^- IR!:l m llifiil be gathered from thepcu'tof body where heavy blows were inflicted, the weapon of offence i.e. a very heavy iron weight (Batt) of 5 K.6. used in causing injuries, 1he force with which the injuries were caused and the nature of injuries sustained by Ajay Kumar Chandra. 10. Lastty in the altemative, it was contended that the fact that a minor boy aged llyearswasassaultedbyaveFy heavy ir-on weightof 5 K.6. on vital parts i.e. near the right external ear <md also on tkie left posto parietol'regiori of the scalp, read with the C.T. Scan report and bed head ticket of C.I.M.S. and the opinion of Dr. K.L.Uraon, PW-6 showed that life of Ajay Kumar Chandra could not have been saved but for the proper timely treatment given at Chhattisgarh Institute of Medical Science. Thus Ajoy Kumar Chandra had sustained injur'ies which were dangerous to life, thereby attrticting clouse-8 of Sectibn-32%,of IPC omd was ttius a grievous injury. The offence committed by the appetlant woyld in no case fall below Section-326 of IPC. Looking to the manner of assault, the weapon used and the part of body where the injury was caused, nature bf the injuries and age of the injuresd, the sentence of rigorous imprisonment for 5 years ond a fine of Ks.5,000/- awarded by the trial Court did not call for cmy interference. 11. Having heard rival contentions, I hwe perused the recor'd. The First question which requires consideration is whejther the appeltant was of unsound mind on the date and time of oc;carrence. 5ection-84ofthe IPC isas under: i Section-84. Act af a person of unsound mind.;-No't|Tng Js an offerice which is done by aperson who, at •ttiertimeQ^ doing it, 'Si] fls3 VKS, -^ by reason of unsoundness of mind, is incqsable of knbwing the nature of the act' or that-he is doind what is either wron3'or contrary tolaw. It is well sett-led-fhat the crucial point of time on which the ynsoundness of mind has to be judged is the time when tliecrime is actually cpmmitted. The burden of proying that at the time of commission of crime, the appellont was of unsound mind lieson ttie dccused in order to be .entitled to the exemption provided in Section-84.It must be le^al unsoundness of mind which exonerates the accused from criminal tiability. In order to constitute unsoundness of mind at •rire time of commission of the offence, it mustbe proyed by the prosecution thatat the time ofcommission of the offence.-the offender was inccyabte of knowing the nature of his act or tiiathe is doing what is either wrong or contrary to law. It is atso required to be understood that meyieal insanit/ should be distinguished from legal inscinity and ynSoundness of mind since unsoundness of mind from medical poiht of view atways witl not necessdrily mean legal insanity for claiming exemption under Section-84 of IPC. It is dlso well established that insdnity is npt per^ defenGe.it hos got to be proved.The defence of insanit/ connot be admitt-ed upon arguments merely derived from the lcharacter of the crime. Proof of urisoundnessof mind also cannot be jadjydged from mere absence of mens reaat the tiine of commission >f theloffence.rthasto be adjudged from the conduct which prscected. crtlenyed and followed the crime. Jn OfWmi Ayat Ws. ^tate 'of Madhya A-ocfesA reported in A.I.R—197'4-Supreme <?ourt'-2|16, jt v S held that the mere fact that death wte CaHsed ^- III •lltl ; •»!K m w. a 1111 i'ill i;! over a trifling matter would also not warrant a conclusion that the appellant was not a sane person. 12. In Oahyabhai Chhaaard>heii TTiofe/ear K?. Stafe o'f Sttifaf reportedin<4.I.R.-1964-S.C.-1563,itwasheldthdtwhenpleaof legal insanity is set up. -the Gourt- has to consider whether^atJ-he •t'ime of commission of the offence the accused, by reason of unsounclness of mjnd, was jricapable of knowing the nature of the act fir •that 'he is doing .what is ejther wporig or contrary to law. THe crucial ppint of time for gscertaining the state of mind of the dccu%;d is the time whenlhe offence was committed. Whefhep the accused was in such a state of mind as to be entitled to •riie benefit of Section-84 of IPC can only be established from the circumstances which precedecl,crttenc!edo[ndfollowedthecrime. 12. It was further held in Oahyabhai (Sypra) thatthe doctrme.of burden of proof in the contest of the plea of insanjty may be stated in the following propositions: (1) the prosecution must prove beyond reasonable doubt that the occused had committed the offance with the reqyisiteifl»en?/•eia;and the bur'den of proving thatalwoiys rests on the prosecu+ion from the beginning to the end of The trial. (2) There isn rebuttabfepresymp-t'ion that •the accused was not insane, when hecommitt'ed the crime, in the sense laid down by Section-84 of IPC; the accused may rebut it by placing before the Court all tl?e relevant evidence-oral.;documentar)' or cjrcumstantial, but the bui''den pf proof upon him is no higher than that rests upon a party -^0 civillproceedings; (3) Even if the accused was not able to establisl') conelusively •that he uros inscuie at the time he commitfed •riife^ W£S"V . :'r 'V^:I^BB K^^':':.^^•^M^S^^'^1 ^:.,,...,.,.^^" ff^iff -y re2S offence, the eviderice placed before the Gourt by the accused or by the prosecution may raise a reasanable doubtin the mind of the Court as regards one dr more of the ingredients of the offence, mdudwnQ mens rea of the accusedand in thatcase the Court woutd be entitled to acquit the accused on the grourid that the general burden of proof resting on the prosecution was not discharged. 13. Tx\ Ratan lal Vs. Sterlw of Madhva Pradesh report-ed in AIR-1971-Supreine Court'-778. it was held that •rile crucial point of time at which unsoundness bf mind, has to be proved is the time when thecrime is actually comnnitted. The burden of proving this coin be discharged by the accused from the circumstances which preceded.attendedand followedthe crime.In thiscase the defence had led evidence to Show that the accusecl was in such n condition that if he was sitfing, he would remain sitting, if he was •to go then he woutd go and if he wished to fall in a river "t'heri hewould fall. The condition of his mihd was such that he used to set fire to his own clothes and house, It was also shown that after the commission of the offenceof setting l<hdfiycn of Nemichandon fire,on being asked, the accusedsaid; "I burnt it and do whatever you want". The cppellant in that casedid not allow anybody to enter his house andj put a lock on the house and his children took their food outside Qhd thedccused did nottalk toonybody. Taking into accountthe oyerdll| situation, the Apex Court held that at the time of occurren<», the a()pel|ant was insane w(ithjn meaning of Section-84 of IPC. 14. that pEn the present case, -rtiere is absolutely no eyidence tO show befor®the date of occurrence behaviour of the accused- -le- m w •lii^ -fe' appellant was irrational. The allegation that he used to enter anybody's house and sTart abusing any person was categoricatly denied by Ajay Kumar PW-t. No evidence was led by_the defence in •(•his regard. There is nothing to show that after assaulting Ajay kuindr, the accused started, tearing of his clothes or started crying or Behaved in om irrational manner 6r remained quite with a blank eKpression ond cfid not answer questions. On the other hond, the evidence shows thdt the accused was sitting in his grocery shop with his daughter behavmg normatly. The testimony of Man Kumari PW-3 in paragraph-3 also shows that the appeltant was tatking rationally and normclly. The evidence of Ajay Kumar PW-1 and Man Kumari PW-3 in para-3 clearly shows that oh being demanded by Ajay Kumar, the appellant hdd weighed the sugar ond handed it over to Ajay Kumar in a plastic foil. Tlius.there is absolutely no evidence on record to show that'rtie accused behaved inan irrational manner either prior to, at the time or after tfie incident. Therefore, the mere foict that the witnesses admitted that the accused wds undertaking treatment for his mentat condition would not by itself show that the accused-dppellant was suffering from legal unsoundness of mind ot the time of incident as required under Sec1'ion-84of IPC.It was also ur9ed by the defence that normat relationship prevailed between the family of Ajay Kumar and the appellcuit. Statements of Ajay Kumgr in parci-4, Khuburam Chpndra !'•: '. ". PW-2 and AWi Kumar'i PW-3 were referred td substdntiatei thia Howaver, be as it moy this by itself would not either show thflt the appellont was of unsound mindat the time of commission of o'ffence 118 ]^S^ ^s- or that the appellant did not assault Ajay Kumar by a heavy iron weight. . 15. A perusat of therecordshowsthaton 17-09-2004, the accused-dppellant had made an application before the trial Judge •that he was ofunspund mind from 5 to6 years,therefore, heshould be proceeded with in accordance with 5ection-328 of the Cr.P.C. Pursuouit to this application, upon a direction given by tiie trial Court, the appellant w<is acfanitted in the P^catric w^ of Or. B.R.Ambedkar Hospital, Raipur on 07-02-2005. t-fewasdiagnosedto be suffering from psychosis after detailed examination and observation of ward behaviour.It was opined that the appetlont had shown improvement with treatment and did not require further hospitalizution. Itwasalso opiriec|-f'ha1'his^Judgmentwdsfoundtobe normal cuid he could unclerstclnd legdl^jir'|Hseedirigs. Upon receipt of such report, learned counsel for tKeaca.lisecl-appellanthadendorsecl on the opplication dated 17-09-2004 thdt he does not press the application filed under 5ecfion-328 of Cr.P.C. 6n the basis of medicaf report. In vwoy, it tantamoynts to giving up the defence that •the f '. . •' • • • . '.'•..••• . . '. appellant was a person of unsound mind on -the date of occurrence; The treatment pdpers filsd by the appellant were not proved by^ leading any evidence. 16. Aj<i/Kumw Gh<mdraPV^lhasslutBdth<rt'<itabout6A;A?iVI')ei| went to purchase sugar from the shop of the appellant. (-le^oiclmi|'te3t in cross examincrtion; that Rupa Bai,:^e :d<U9h1eyof'th&||i|i|e||^|Jj|||;||||j||j| :who :wds: also of his age,: was present .with' the'at:ipel1ai'ifr'ir|i:|||l^|9||jjj|J||j|g|g!8 It;was furtherelicited'by the defence, in,cross-examinati|o@jffi|;8j|l'Bg|||SiS||||B| A3" ofseizure of 5 K.6. weight from the shop of the appellcint, is proved by wholly unrebutted testimony of Lalji Shybham PW-9 who hds proved sejzupe memo yide Ex.P-14 during the course of evidence. The iron weight was also sent for chemical examination to the Forensic Science Laboratbry and presence pf blood was confirmed by the Forensic Science Laboratory; Khuburam Chandra PW-2 has categorically stated that on hearing the noise when he reached the spot, he saw that Ajay Kumar was lying on the ground near the shop of the appellant with injuries on the head and ear which were suggestive of assqult by an iron weight. The medicat examination papers of Ajoy Kumar Chandra by the C.I.M.S. alsogive the history of assault by an iron weight. The defence has not takenany such plea that Ajay Kumar had sustained.injuryinanyottier nianner.It is thus estab 1ished that after delivering sygar when Ajay Kumar asked the .'..'•lltfciyi '. .. J.. . .;•. • .••,., . . ./::\'- ::,.-:'^.:....''' '^•':.'...^. t^pellomt to giyetd Bombay^tkqPouch,^heappelIantpushed him on the ground and repeatedly assmlted him by a heavy iron weiight of 5 K.6. on vital parts. 19. Dr. K.L.Uraon PW-6 who conducted the medicalexamihationof Ajay Kumai* Chandra ori 03-05-2004 statedthat he saw one long contusion of 6"xl"placed 1 away from •the right angle of mou-tti to the middle ofright extemal earwith bleeding qn-the middteof right extemal ear cmd one lacerated woynd deep up to scalp bone with •bleeding 1 i" x 1 i" x ^* on the teft posto parietal region of scalp. Ajay Kumar was ina semi conscious storteand was referred to B.&.M. Hospitaf at Janjgir-Champa Ex.P-20. Tlie indoor poipers of treatment received by Ajay Kumar at the C.I.M.S. clearly 90 to show jthat despite administration pf life saving drugs arid best medical ES— -j^r- treatment, Ajay Kumar regained conscibusnessonlyon 09-05-2004. It also shows that Ajoy hqd history of nasal bleeding ond vomiting <md was irritable. 6r. K.L.Uraon PW-6 has opined that if Ajcy kumar had not received proper medical treatment within6 hours after the occurrence, death was possible. 20. Though the prosecution has not established mens rea for the accused-appellant to maktedn attempt on the life of Ajay Kumar by hitf-ing him with a very heavy iron weightof 5 K.6. violently on the head and ear yet there is some indication in the crossexamination para-4 of Khuburam Chandra PW-2 who denied on being specificalty asked by the defence that he had sent Ajay Kumar to purchase sugar with only Rs.l/- . It connot be ruted out that after weighin9 and delivering the sugar worth Rs.4.50 when Ajay Kumar gaveonly Rs.l/- to the appellantcind also asked for Bombay Sutka Pouch.itannoyed the appellant ond after pushing Ajay Kumar ori the ground, he assaulted Ajay Kumar on the rightear omd left side of head with d very heavy iron weight. 21. Thes appellant has placed r&\\<snce. on Elkan Shankeu'i Vs. State of A.P. reported in Volume-VT[I-1989(2)-CRIMES-Page No.- 702, Samia Eranna Vs. State of Kamafaka reported in 1983- Cr.L.J—619and Shama Tudu Vs. 5tate reported in |1987- Cr.L.J.-618 while arguing that abaencs of mens /ieo woutd be a strong cjrcumstance to indicate that the appellant was of linsound mind at the time of commission of offence. However, the fatts and circumstiances 6f the cases cited by the defence are |clearly s distingujshable since in those cases irrational behavibur pf the accused-appellont prior to, at -the time of and after the comtnission ^3- -;?->' of offence was explained. In the present case, there is no such situation. Theappellant behaved like a wholty rational persbn till he delivered the sugar demanded by Ajay kumar. Even afterttssaulting Ajay Kumar, the behaviour of the appellouit is not shown to be irrational. The only fact that he wos taking some treatment for mental ailment would by itself, not show that the accused was suffering from unsoundness of mind at ttie time of occurrence as contemplated under section-84 of the IPC. 22. In Hari Mohan Mandal Vs. State of Jhtiri(hand reported in AIR-2004-Suprem®Court-3687, itwas held thatto justify the conviction under Section-307 of IPC, it is not essential that bodily injury capable of causing death should huve beeninflicted. Atthough, the nature of injury actually caused moy often give considerable assistancein coming to a finding as to the ihtention of the accused, such intention may also be deduced from bther circumstances.and may even in some cases, be ascertained withoutany reference atttll to actual wounds. The Section makes a distinction between an act of the accused cnd its^result, if caiy. Such dn act may not be attended by any result so far as the person assaulted is concemed, butstill there may be cases in which the culprit would be liable uncler •this Section. Ft is not necessary that the injury o^tually caused to the victim of the assault should be sufficient under ordinary Gircumstances to cause the death of the person assaulted.What #he Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstunees mentioned in the Section.An attempt in order to be criminal need ^" i^ [:il Tiinicne not be the penultimate act. It is sufficient in law, if there is present an intent cou61ed with some overtact in execution thereof. 23. Relying upon ^AtW/Any^ K?; 5yate o/^Asrtffl»reported in A.I.R.-2004-S.C.-1264, I am pf the considered opinion thatthe .-fck^.. ;.; '. •; .'. • intentionof^qipetlant con be gdthered from the weapon of offence used ( a very heqvy iron weight of 5 K.6.), the tender age of the injured, a boy of 11 years, the vital parts of body where theweapon of offence was violently and repeatedly struck and the nature of injuries sustained by Ajay Kumdr which lewesno room for any doubt that at the time of the incident, the appellant intended to cfluse the death of Ajay Kumar. The mere fact that no men^ /^a isshown to existwould not by itself in any mannerdilute the gravity of.offence. 27. Having thus considered the evidence led by the prosecution in its entirety, I ttm of the considered opimoi'i that the conviction of the