XI-HC—78 ani?[ ?ii'feTw '^W! 3TT^T sh^icn 3^T rtll.tll^, 0Tflti'16, (si<?''wy Tia% ( •reiiWHl^i CT^I HI6H COURT OF CtilHATTESeARHAT BILASPUR bIVISION BENCH: HON'BLE MR. L. HON'BLE MR. DltiIRENbRA_MISHRA. JJ CRIMINAL Afl APPELLANT CCn Jail) RESPONDENT Vs Shi| abd c, ,^^ The -Aai Kori Present; Mr. S.L. Bajaj, Advocate for th Mr. U.N.S. Deo, Addl. Public Pn O RA L (3rd Per L.C. Bhadoo. J: This appeal is directed order of sentences dated 3 Additional Sessions Judge, Ba Trial No.248/98 whereby leai +l<<I<'l<fl-< TVP^I ^fStS (WtCK ^•3{RiH 311^1 . BHADOO <& EAL N0.771 of 1999 Kumar Panika, s/o Pawansay, aged jt 30 yrs. r/o 6ram- Dudhhiyakala, Baikunthpur, Distt-Koriya (MP) ,State of Madhya Pradesh through |chi Kendra, Baikunthpur, Distt- ^a (MP) appellant. |secutor for the reSpondent-State. BLU^GM E N T [Tuly, 2007) o^ainst the judgment of conviction and !th January, 1999 passed by lear-ned |<unthpur, t>istrict Koriya, in Sessions jied Additional Sessions Judge affer holding the accused/appellant gpilty for commission of offence under 1 Section 302 of the I.P.C. for (^ommitting murder of his wife Rambai XI-HC—78 sn^i ?ii W* •gqTsn^igi-qw 3^r ^||A||^, (<>T{1y'i<i, isi<tiyy W^V\t ^KW* sd^r ^rag; ( •^glWHf^t 311^1 for life and to pay a fine of R «b|i|I^<)^WRlf Tifs^S <r«ltSK ^TsffiCTaii^r and son Sadhan Ram, sentencejd him for each murder to undergo R.I. .1,000/-, in default of payment of fine to further undergo R.I. for ^ne year under each count. Both the sentences have been directed •tlo run concurr-ently. Case of the prosecutionj in brief, is that Pawan Sai, father of accused/appellant, lodged a rjeport (Ex.P-1) in the Police Station Baikunthpur to the effect that |since last one month accused/appellant was suffering from mental illne^s, therefore, he used to remain in the house. On the fateful day, Ranjbai (since deceased), wife of accused, was working in the house, his so i Sadhan Ram (since deceased), aged 4 years was playing in the courtya^d of the house and accused/appellant was also in the house, whereasj committed murder of his wife & he had gone to his agricultural field. Kismat Bai came there and infcjrmed him that accused/appellant has |son by attacking with a Tabbal. Receiving this report, the]Station House Officer, Police Station Baikunthpur registered the crinje under Section 302 of the IPC, left for the scene of occurrence, Panchas prepared the inquest after 9iving notice (Ex.P-3) to the |Ex.P-4) on the body of Rambai and after giving notice (Ex.P-5) to 1jhe Panchas, he prepared the inquest (Ex.P-6) on the body of Sadhan] Ram. He also prepared the site plan Ex.P-8. XI-HC—78 3:OTT^Tpn?5?T, ^+I'IS, rstc-SKriy "Wl^l *NI<*i 3V^y tRW (' 311^1W ft-fi.'h WI 31TOT i»*11ti •^silW^f^an^T +ii|ii-t4-1 -qTiRif -cf.fe^t <r«1^K iTafraqsn^T buring the police custod^ accused/appellant gave memorandum (Ex.P-9) regarding the place wh^re he kept Tabbal, weapon of offence and in pursuance of that he got ^-ecovered Tabbal under Ex.P-10. Body of deceased Rambai uvas se(it for postmortem examination to Community Health Centre, Baiki+ithpur where Dr. &.K. Chikanjuri (PW- 9) conducted postmortem, prelared the report Ex.P-15 and opined that cause of death was incised wound of neck (cutting great vessels, nerve trunk, trachea, oseophasjus vertebral column) and death was homicidal. Body of Sadhan Rjim was also sent for postmortem examination to Community Healt Chikanjuri (PW-9) conducted po 17 and opined that the death i Centre, Baikunthpur, where br. D.K. stmortem, prepared the report Ex.P- was due to cutting of neck (great vessels, trachea, oseophagus, cer|vical vertebra <& nerve trunk) and the same was homicidal. Weapon of ^ffence, Tabbal was also examined by the doctor and he gave his reporf Ex.P-18A. After completion of usual |investigation, charge sheet was filed against the accused/appellant | in the Court of Chief Judicial Magistrate, Baikunthpur for comijnission of offence under Section 302 of IPC, who in turn committed fhe case to learned Sessions Judge, Sarguja, from where learned Ad^litional Sessions Judge received the case on transfer for trial. The rirosecution in order to establish the XI-HC—78 g=5^^fPTR^, ®Tfl<1'l<S,Rftf'l^y •WMr *NI* 3^f -q5R? (Tpf^^) sn^rqii'f^iw ^STT STI^T st>^l<ft •g^iWBfta sn^r +wiit4i-i Mii^i^fe]<a <r^^ •^ aiRm w^i charge against the accuse Statement of accused/appella Cr.P.C. in which he denied th< d/appellant examined 12 witnesses. ht was recorded under Section 313 of material appearing against him in the prosecution case and stated tljiat he is innocent and has been falsely implicated in the crime. Learned Additional Sess^ons Judge after hearing the arguments of learned counsel for the| respective parties, convicted and sentenced the accused/appellar|t herein, as aforesaid. We have heard Mr. S.L. |Bajaj, Advocate for the appellant and Mr. U.N.S. &eo, Addl. Public Projsecutor for the respondent/State. Mr. Bajaj, learned coun^ disputed the homicidal deaths el for the accused/appellant has not of Rambai & Sadhan Ram. Moreover, Dr. t).K. Chikanjuri (PW-9), who|conducted postmortem on the body of Rambai <& Sadhan Ram, has sfrated that death of Rambai was on account of cutting of great ves^el of neck and was homicidal in nature. He has further stated that he |:onducted postmortem on the body of Sadhanram also, he died on acc^unt of cutting of great vessel of neck and death was homicidal in natut-e. Therefore, in view of the above it is established that deaths of Rijimbai <& Sadhan Ram were homicidal in nature. XI-HC—78 3^r ^||A||^, gtfl+l'IS, is|0iyy G / •WRTT *Nleb ai^r ^a R-ti.'h ^anaii^i'a'^iN; sn^TT 'vstv (' ^giWdfta 3l(^r -'hwh^-f ^wvStf.h^ <Cai^l< •^3(fiT>T3n^( As far as involvement of f-he accused/appellant in the crime in question is concerned, in thi^ case there is no ocular or direct evidence connecting the accus^d/appellant with the crime in question and the whole case rests upon t^ie circumstantial evidence i.e. a. Deceased Rambai <& Sadl^an Ram and accused were only persons in the house, when peof^le came to know about the incident, father of the accusec( was informed, the villagers were collected, the house wa^ bolted from the inside, therefore, after climbing the roof cjf the house and removing the tiles of roof they saw the accusejd along with deceased persons. Bodies of Rambai & Sadhan Ra(n uvere lying in a pool of blood and accused was present in th^ house holding Tabbal in his hand. b. That, the Tabbal, weapo|i of offence, was recovered at the instance of deceased. Mr. Bajaj, learned counsel (for the appeltant argued that in the FIR (Ex.P-1) itself the father o1f accused has categorically mentioned that the accused was suffering from mental illness and he has stated so in his court evidence also. Mfrreover, PW-5 Lalla Prasad Singh has also stated that the accused wa^ suffering from insanity. Therefore, from the above evidence it is e4'ablished that the accused/appellant was suffering from mental illnes^, as such, he is entitled for benefit XI-HC—7S sii^rw R;.-ii.+ ^I'V 3WI gi*f 3rcT ^1*11^, ^TTly'is, fsi^i+fy "Ml^^l *Nt* "OT, sn^y TRS ('pt-j,«i<w) ^RIRR^lfetSn^T ^pfesfrT wi.af ti.f^r tfsn?re •^aifinan^T under Section 84 of the I.P.<r. and on this ground he is entitled for acquittal. On the other hand, learilied Additional Public Prosecutor for the State supported the judgment|of the trial court. So far as the involvemejit of the accused/appellant in crime in question is concerned, Pawan| Sai (PW-1), father of accused, has stated that on the date of incjident he went to the agricultural field for the purpose of irrigation Ipf crop, Kismat Bai came there crying and said that there is quarrel c|t the residence, therefore, he came to the house and saw that villagerjs were standing there. Both the doors of his house was closed from in^ide, therefore, he climbed the roof of the house and after removing [the tiles of roof he saw that body of Sadhan Ram w/as lying in the c<(urtyard, his head was separated from the body and the body of Rambijii was lying near the wall. After seeing this he fell down. In Para-31 of his evidence he has stated that accused Shivkumar was in his hbuse. In the cross-examination, he has stated that since both front 4 back doors were closed fr-om inside therefore, he is saying that Shi^kumar may have been in the house. PW-2 Rambai has also ^tated that she is neighbour of the accused. She heard Raghunathj saying that his father has murdered XI-HC—78 -JviS n<M|ci^, »Ti1y'IC,is|<'il<r)y,< 'MWrtl *NI*' sf^\ Tf^as (' an^Tr'^l^tN? ^Sff 3H^T sh+llcft ^giWHltg aii^i ^T^(?l'ci1^ ^W^ ^f^St <^1^K ^affira-aii^i his mother. Accused was insidi Rambai & Sadhan Ram died. Thii PW-3 Shobhit Ram has 4 the courtyard of house and he] In the cross-examination this to say that he did not see the stated that it is correct to say to ran away, the villagers hadj Police seized Farsa from the ac^ PW-6 Sundarlal has stat< on the roof of the house and sc mother <& brother. Pawan Sai Bodies of Rambai <& Sadhan climbing on the roof of the hou; the courtyard of the house hol them accused went inside the r accused thereafter threw Farsi Even though PW-7 Raghi declared hostile but he has st( the house. She does not know how witness has been declared hostile. tated that the accused was present in was carrying Farsa stained uvith blood. fitness has stated that it is incorrect iccused in the house. He has further •hat accused did not make any attempt also encircled the house of accused. :used. [d that Raghunath, son of accused was ying that his father has murdered his was also on the roof of the house. iam were lying in the house. After \e he saw that accused was standing in ling Balua in his hand and after seeing ^om and bolted it from the inside. The in the kitchen garden. tiath Prasad, son of accused, has been +ed in Para 4 of his evidence that the accused was in the house, but injfact, he did not see him attacking his XI-HC—78 gn^r^'feiw ^TT 3TT^?T ^HIcfr 3rc[ ^||A||^, ;?T{ly'l<», is|C''l<r)y HWvff *Mt* sn^TTraw Ctfiil^S?: ^(giWBfer sn^T wiferih iniRff^fs-S tfss^p. •^ sifgq aii^r mother & brother and the bocjy of his mother <& brother were the house. in From the above evidenc^, it is established that the dead bodies of Rambai <& Sadhan Ram werej lying in a pool of blood in the house of accused and the accused wa^ also present in the house carrying Tabbal in his hand. It is also efetablished that when Pawan Sai left the house, accused/appellant, his |wife and son were in the house and thereafter the bodies of Ram^ai <& Sadhan Ram in injured condition were seen by the above witrjesses. The accused was seen holding Tabbal, weapon of offence, in l^ is hand and the house was bolted from inside. The accused has not offler-ed any explanation that how his wife and son we.re, murdered and wh(j> was responsible for the same. In the given situation, as per provisioi^s of Section 106 of the Evidence Act the burden was on the accusejd to explain the circumstances under which his wife and son sustain^d vital injuries, but he has failed to discharge the burden. The Investigating Offic^r (PW-6) has stated that while in police custody the accused gav^ memorandum (Ex.P-9) regarding the place where he kept Tabbal an<| in pursuance of that Tabbal was got seized at the instance of accilsed under Ex.P-10. Even PW-5 Lalla Prasad Singh has stated that c^ccused gave memorandum (Ex.P-9) to XI-HC—78 ^eq- ^rrai^r, (jiTfl^i^, Rt<?iiyy an^r TRW (•'rt^r) sn^i ?it ft-ii* WIT 31RCT snil°n •?(<nwflto ai^f ^l<iffl<i1-1 -Vl^ ^fS^ Tfsn?R ^afflTcrail^ the police in his presence whic 'r\ bears his signature at place 'A to A' and thereafter at the instanc^ of accused Tabbal uvas seized under Ex.P-10. Said Tabbal was sent for examination to Dr. D.K. Chikanjuri (PW-9) under Ex.P-18, who aft^r examination gave his report (Ex.P- 18A) and opined that the injuri^s described over the necks of Sadhan Ram & Rambai resulting in their deaths may be produced by the above described weapon. In view of the above, if is established that the weapon of offence was recovered at the in^tance of accused/appellant. Now coming to the argu^ient advanced by learned counsel for the accused/appellant that at •j'he time of commission of crime the accused was suffering from me(ital illness, as such he is entitled for the benefit of Section 84 of the| IPC. In order to seek protectic| on the accused to establish thatl he was suffering from unsoundn' n under Section 84 of IPC the onus is at the time of commission of offence sss of mind. Section 84 contemptates that: "Nothing is an offence w^ich is done by a person who at the time of doing it, fcjy reason of unsoundness of mind, is incapable of know ng the nature of the act, or that he is doing what is ^ither wrong or contrary to law." XI-HC—78 10 -S^^SfK^, :STflW5, t^Riy (/^) ai^f ?ii ft-fi'* •gan 311^1 s6IIW TTTO^IT '*NI=b an^r •IRW (yityi<«T) •^gw:Erf^i w^i iiiliiii.lin-1 •RWff^f^ ~^<^K i7afl?n3Tl^l Therefore, when a plea of legjal insanity is set-up, the Court has to ascertain whether at the time mind, was incapable of knowing of commission of offence the accused under the supervening circumsjtances, on account of unsoundness of ^•he nature of act or that he was doing what was either wrong or contrcjiry to the law. Section 105 of the Eviderjce Ac-t envisages that; when a person is accusetJ of any offence, the burden of proving the existence of [circumstances bringing the case within any of the 6eneral]Expectations in the Indian Penal Code, 1860 or within arjy special exception or proviso contained in any other parjt of the same Code, or in any law defining the offence, is|upon him, and the Court shall presume the absence of si^ch circumstances. In order to appreciate t|ie arguments of learned counsel for the accused/appellant, we have •(•o scrutinize the material available on record to ascertain whether th^ accused has been able to discharge the burden of Section 105 of Ei'idence Act. In the present case, in the first instance Pawan Sai (PtV-1), father- of accused, lodged the report Ex.P-1 in the police stati|on regarding commission of crime in which it has been mentioned thcjt his son became mad since last one month. Similarly, Lalla Prasad Si|igh (PW-5) has also stated in Paro 9 of his evidence that accused wa^ in the mad condition.rte was telling the place where Farsa was lying b^ pointing towards that place. XI-HC—78 11 3^r ^iFn^r, ^Tfl'y'i'i, fstc''iyy •wi^n' *NI* •W!, giT^T Tigq; ( SV^V W R-il'* ^i'nsn^r^iw ^giWdfsgsn^i •TOiferiN•cn'Rif-ii.feistTfwsn ^aifiitian^r buring trial, the accuse(|l whether the accused was sufferii commission of crime, therefoi}' examination of the accused an< accused was sent Medical Colleg^ team of doctors constituted admitted in the hospital from 9. ward. Medical board has given i- was not medically examined as to ing from mental illness at the time of e, this Court ordered for medical in pursuance of Court's order the ;, Raipur where he was examined by a or the purpose. The accused was f.2007 to 18.6.2007 in the psychiatry l-|s opinion that background history was i^lf, information provided by the jail obtained from the patient himsj staff regarding his behaviour c)nd his family members, during last hospitalization in psychiatry warjd. The patient's ward behaviour was observed regularly and serial t^ during his stay in psychiatry war|d. Patient Shivkumar was in judicial custody immediately after the d( no report of any abnormal beha^ till he was hospitalized in Dr. B. There is no history of any p treatment at Dr. B.R.A.M. Hospil family members about his abn< unreliable and also dose not ental state examination was done te of crime i.e. 21.5.1998. There is our, since his arrest for the crime, .A.M. Hospital, Raipur on 29.1.2007. ^ychiatric treatment prior to the l|al, Raipur. Information provided by ilrmal behaviour is inconsistent and <|:onform to any known psychiatric disorder. Mental illness of psy^hotic type does not usually remit 12 XI-HC—78 SfI^I 5il (t;-l ^eiian^rgniR? 3=5^ ^tlWI^, glTfl'M'l^, Rl<Y>iy^< *!INc^l *^l<b 3tI^?T -qaq; (lj»<tl»l<B) ^giwgfeT an^T cplll'-l'il-l 'WRTf tf.fe^ 'd^IT ^TsifOTsn^r without treatment. Spontanejous recovery, which occurs in small number of cases, usually takes^ more than three months period. Based on these observations it is opi^ied that Shiv Kumar was not having any major psychiatric illness on 21.^.1998. In vieuv of the above opijnion of the medical board, the accused was not sufferin9 from any mei( crime. Even the accused in 11 Cr.P.C. has not stated anything| of commission of crime, he haj against him in the prosecutioi^ ital illness at the time of commission of is examination under Section 313 of about his mental condition at the time i simply denied the material appearing evidence and reply of each question given by the accused shows tfliat ui/hile giving reply he was mentally alive and he gave the reply inte^igently. The.re is no other indepe^dent evidence or material on record to establish that the accused wa suffering from mental illness nor ii order to ascertain that the accjjsed was suffering from mental illness at the time of commission of oflfence. Even, the Investigating Officer has not been cross-examined o|n that aspect. Therefore, merely on the statement given by the fc|ther of accused that at the time of commission of crime the accu^ed was in mad condition and casual statement of PW-5 Lalla Prasa^ Singh that the accused was mad at the time of commission of offer|ce, it cannot be held that the accused sn^vw Wi* ^KTT 3TR?T^^lch 3^T "tll-tll^, diTf1y'l<i, Rlrtiyy 13 ao^nraw (lyfl^a) •eRIRR ^f?3-ffl^T has discharged the burden w|' Section 105 of the Evidence A4 In view of the abdve disi arguments advanced by AAr| accused/appellant that the mental illness at the time of co( lich was on him as per provisions of :ussion, we do not find any merit in the Bajaj, leqnred counsel for the c^ccused/appellant was suffering from nmission of crime. For the foregoing dis<j evidence the pr'osecution has b< doubt that from the circul conclusion can be drawn that tl crime in question and there committing the heinous crime o1 In the result, we do not| judgment of the trial court cc for committing the murder of the appellant has no substance, it is hereby dismissed. Sd/- L.C.BHADOO Judge •«>l<<ffl41-t'WRff ifJ^A ^R?R •^sfRrti SD^I ussion, based on the circumstantial ;en able to establish beyond reasonable tnstantial evidence only irresistible |e accused/appellant was the author of |s no possibility of any third person murder of Rambai & Sadhan Ram. find any illegality or infirmity in the jnvicting and sentencing the appellant iambai & Sadhan Ram. The appeal of Ithe same is liable to be dismissed and