F4/3 2 Th6 conviction i$ impugned on ths ground that without there beiug any iota of evidence suiflcient for conviction of the aypallant, the loarneci Additional Sessions Judge has convicted and seliteaced the appeHamt as aforesaid mentioned énd thereby committed illegality. 3. As per case of prosecution on the fateful day of3.6.2005, at about 10.30 am, this appellant took PW—4 Divya Chandrakar, 8 years child along with her brother- Vinay Chandrakar, 4 years child for giving them Chhind, a small fruitof date species, where he throttled the neck of Vinay Chandrakar and caused his instantaneous death. PW-4 Divya‘ Chandrakar immediately rushed to her house and informed her father and mother. Thereafter, Ramesh Kumar Went to Police Station and lodged FIR vide EXP/6. Merg was Iecorded Vide EXP] l. The Investigating Onicer left. for the scene of occurrence and after summoning Witnesses Vide EX. PXSA, inquest over the dead body of the deceased was prepared vide Ex. W4. Dead body was sent for autopsy to C.H.C. Gunderdehi, where Dr. CB. Prasad (PW—8) conducted autopsy vide EX. Pf? and found abrasion over the neck of the deceased. Trachea, neck and lungs were congested. Mode of death was asphyxia as a result of throttling. Patwari prepaied spot. map vide EX. P[5. Statements of the Witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4—. After completion of investigation, charge sheet. was filed before the Judicial Magistrate First Class Durg, who in turn, committed the case to the Court of Sessions, Burg, from where the learned Additional Sessions Judge received the case on transfer for trial 5. ln order to prove the guilt of the accused/appellant, prosecution examined as many as 11 Witnesses Accused was ' examined under Section 313 of the Code, in which, he denied the i circumstancss appearing against him, innocence am} fal$€ implicatioa in crime in quEStion was claimed. Accusad has takan defence that ha was hisaue at the time of commission of offence mad he was not able to understand the result of the acts done by him. He has examined defence Witness Dr. Framed Gupta (DW- 1), who has deposed that on 23.5.2005 he has examined the appellant and he was a patient of anxiety. 6. After affording opportunity of hearing to the parties, the learned Aaditional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard tearned the parties at length, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that at the time of commission of odence, the appellant was insane and he was unable to understand right. or wrong during the course of insanity and therefore, he is protected in terms of Section 84 of the IPC. He further argned that evidence of Dr. Pramod Gupta (DW— 1), Dr. MK. Sahu (PW~1), Kirti Chandrakar (PW—5) and Bhagwati Prasad Chandrakar (PW~7} is sufficient for drawing an inference that the appellant. was insane at the time of commission of offence. He placed reliance on the decision of this Court, rendered in the matter of Virendra Kama: Vs. State of €hhatti§gh£ in which, this Court has held that in case of unsoundness of mind of the appellant, at the time of commission of offence, he is entitled to get benefit of Section 84 of the IPC. 9. On the other hand, learned counsel. for the State vehemently opposed these arguments and submitted that appellant has taken defence of insanity available under Section E 20m (A) MPHT 103 (CG) 84 of the IPC. He was under obligation to prove the act 1'11 térms of Section 105 of the Evidence Act. Evidence of aforesaid wimesses iS not sufficient for drawing an inference that at the. Time of commission of offence or on the relevant date, when the appellant was examined by the Doctor, he was insane or unabie to understand good and bad or right or wrong. He argued that evidence of PW-4 Divya Chandrakar, who was present along with her deceased brother, is well corroborated by the evidence of PW- 5 Kirti Chandrakar, her mother, is suiiicient for drawing an inference that the appellant has caused homicidal death of Vinay Chandrakar with intent to cause his cleath anti Court below has rightly convicted and sentenced the appellant as aforesaid mentioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of throttling of Vinay Chandrakar has not been substantiaily disputed on behalf of the appellant, on the other hand, it is established by the evidence of Dr. QB. Prasad (PW-8) and autopsy report Ex. P,’ 7 and death of the deceased was homicidal in nature. 12. As regards complicity of the accused/ appellant in crime in question is concerned, conviction of the appellant is substantially based on the evidence of PW—4 Divya Chandrakar, 8 years child wimess. In order to place reliance on child witness, Court is required to satisfy itself whether the child was able to understand his duty to speak truth and is able to answer the question put to him/her rationally. As per para 1 and 2 of her evidence, before examining her by asking the question, Court has satisfied itself that the witness was in a position to answer the question put to /J ”we“, (/5 bar and sh€ understand the duty t0 speak truth. As per her evidence, 1161” mother Le. Kim Chandrakar (PW-5) accompanied her and her brother- Viuay Chandrakar up to Aanganwadi and she left tham there, where the appellant was also present. The appellant took her and her brother to Byara (place of chhind trees make safe by Wire fencing) for providing them Chhind; the appellant pressed the neck of her brother and also tried to press her neck, on which, she fled and rescue herself anyhow and went to the shop of her father and narrated the, incident. Her evidence is corroborated by the evidence of Kirti Chandrakar (PW-5), Ugeshawar (PW-3), her mother and father. As per evidence of Divya Chandrakar (PW—4) and Kirti Chandrakar (PW-5), she had accompanied her daughter and son up to Aanganwadi and after leaving them in the Aanganwadi, she went to her husband’s shop. After some time, PW—4 Divya Chandrakar came to the shop; she was weeping and told that on the pretext of providing Chhind appellant has pressed the neck of her brother Vinay Chandrakar. Then they immediately went for searching the appellant. The appellant was found near the tree, he tried to run but she caught hold him and asked about the incident; at that time, Babla Chandrakar came and informed that one child is lying in the Byara of Jainarayan. Then they went along with other persons to the Byara of Jainarayan, where the dead body of her son was lying. 13. Defence has cross examined these witnesses at length, but has not been able to elicit anything in their cross examination to discredit their testimony to the extent that present appellant has not pressed the neck of Vinay Chandrakar. Kirti Chandrakar (PW—5) has admitted in para 5 of her evidence that just before the incident appellant was laughing like a giant and before 15 days he has also threatened her that he has noted the date of her marriage and he will teach her a lesson. The evidence of aoresaid Winesses is sumciant for drawing an inference that presant appellant has pressed the neck of 4 years small child and has caused his homicidal death, 14. As regards The question of molive and defence of Exception of insanity available to the appellant under Section 84 of the IPC is concemed, defence has examined DW—l Dr. Pramod Gupta, who has depsed that on 23.5.2005, he has examined the appellan and found that he was sutfen'ng from anxiety disorder. He has explained the symptoms of anxiety in para 3 which reads asunder: "WWW§W$W.WWWWH§§W. sangaetitwetwslmmaiammdnamqmmsi atmmtisqd’fgoe‘ia—uadmsinawwatswm§P As per his‘evidence, he has examined the appellant only on 23.5.2005 and he is not his regular patient. Court has also examined Dr. NLK. Sahu (PW— 1), who has examined the appellant in the month of Januaxy, 2006. As per his evidence, during the course of trial, appellant was suffering from Psychosis mental decease. Para 4 of his evidence revealed that his mental position was normal and he was able to understand. Bhagwan' Prasad Chandrakar (PW—7) has admitted in para 5 of his examination that 10-15 days piior to the incident, brain of the appellant was disturbed and he used to abuse, but he did not use to assault. Para 5 of his evidence revealed that at that time he was a man of short temper and his behaviour was abnormal and the appellant was treated by Mental Specialist, but he has not stated the name of such Doctor. Defence has also not adduced any other defence relating to such treatment except the examination of appellant on 23.5.2005 by Dr. Pramod Gupta (DW— l). 15. In order to take the defence of Exception provided under Section 84 of the IPC, accused was required to prove the f t o t Exception by adducing cogent evidence. As per evidence of Dr. M.K. Sahu (PW—1) and Dr. Pramod Gupta (DW—l) the appellant was suifen'ng from Psychosis or insanity. As per evidence of para 2 of DW-l Dr. Pramod Gupfa, degree of disorder was mild. Even otherwise, as per his evidence, appellant was not unable to hderstand good and bad or the result of the act that too on the of commission of odence, but after. giving threat to the omer of the deceaSed prior to commission of such oEence, on the pretext of providing Chhind fruit for pressing neck of 4 years small child shOWS that the appellant Was not insane at the time of commission of oEence and has intentionally committed culpable homicide amounting to murder of 4 years child. 16. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted and sentenced the appellant as aforesaid mentioned. Conviction of the appellant is ased on credible and clinching evidence sustainable under the aw. While convicting and sentencing the appellant Court below has not committed any illegality. Consequently, the appeal being devoid of merits is liable to be dismissed and it is hereby Y7 r we m h V ” V‘i‘H M ' sd/- V‘i‘H i Sd/- [ \ R.L. Jhanwar \\ T.P. SHARMA c Judge Judge . W "‘ sunita "’ ’ e