HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble^ShnRaleeyGyBtaLC.J, & Hon'ble Shri Sunil KumarSinha. J. ^ APPELLANT RESPONDENT Criminal Appeal No. 813of2QQ2 Ramdayal Pando, S/o Bacchulal Pando, aged 37 years, Occupation Agriculture, R/o. Chaupata, Chowki - Balangi, P.S.- Chandni, District Surguj'a(C.G.) Versus State of Chhattisgarh Through Police Station Chandni, Distnict Surguja (Appeal underSection 374(2) of The Code ofCriminal Procedure) 1 • . ADpearance: ' I. ShriAbhayTiwari,CounselfbrtHeappellant. 1 Shri PraveenDas, Dy..Govt.Advocate,fbrtheState. | ._L , JUDGMENT i (2^02.2009) | ) •• . Following judgment of the Court was delivered by SunilKumarSinha, J. I i ...il! (1) Appellant Ramdayal Pando stands convicted u/ss 302 &307 JF'C and sentenced to undergo imprisonment fer life ?and R.l. fbr 7 yejars respectively, by the Fifth AdditionalSessions Judge, (F.T.C.), Surajjiur, District Surguja in Sessions Trial No.291/2000 on 19.7.2002. (2) The case of the prosecution js thaton 4.6.2000at about 12 ncjon, Umashankar (since deceased) and his brother Sunderlal (PW-6) Were preparing to go to forest. Salikram (PW-7) was also there. Umasha^ar ahd jSunderlal said that let them take their meals first. Wheri Wtey vi^re ^ntering in their house, the appellant came there, snatched the sij3(de ^ Criminal AooealNo. 813 of2002 from the hands ofSalikram and started causing injury to Sunderlal (PW- 6). This was intervened by deceased Umashankar. He gave one rammer blow on the back of the appellant, on which, the appellant leftSunderlal (PW-6) and attacked on the deceased and caused injury to his neck. The deceased died instantaneously. (3) The matter wasreported by Ramdin (PW-1), on which, the First Information report (Ex.-P/1) dated 4.6.2000 was registered. Sickle was seized on the same day under Ex.-P/2 as it was produced in the police station by the complainant. The Investigating Officer reached to i the scenceof occurrenceon 5.6.2000, prepared inquest (Ex.-P/4)on the body of the deGeased and seized plain soil and blood stained soil from the place of occurrehce under Ex.-P/6. Articles belonging tothe deGeased were also seized under Ex.-P/7 and somecloths were seized under Ex.- P/5. The dead body of the deceased was sent for its post-mortem to Primary Health Centre, Chandni (Biharpur) under Ex.-P/8-A, where jthe post-mortem examination was conducted^by Dr.A.M. Siddiqui (PW-8), who prepared his report Ex.-P/S. He notieed 4 incised wounds on (he body of the deceased. One was on the right side of the cheek, size 6 6m; other was on the left side of the cheek, size 7 cm; the 3 was on the middle portion of neck, size 7 cm x 3 cm x 4 cm & 4 was also on the anterior surface of upper portion oftheneek, size 5 cm x 3 cmx 4 e^m. The trachea was opened, thetissues underthe injuries were alsocut ahd it had damaged the blood vessels. TheAutopsy Surgeonopined thatithe cause of death was haemorrhagic shock as a result of excessiji/e bleeding and asphyxia asaresult of filling ofair pappage with blood ^nd jt was homicidal in nature. ! 1 il (4) Injured, Sunderlal (PW-6), wasalsosenffor his e^mination un^^r Ex.-P/13-A andwas examined by Dr. J. Ekka (RW-9), who prepared|lf(is report Ex.-P/13. According to the irajury report, he noticed one incis^d \fl©und,size 21^ inchx % inch x % inch on the upper left portion ofneck.l il (5). 'ln further investjgation,site plans were prepared under Ex.-P/l^i^ Rl'6. The seized articles were sent for their chemical examinatibnllo Y r^ ! I; 'fT'iF '(.^ Crimmal AopealNo. 813 of2002 Forensic Science Laboratory, Sagar under Ex.P/20, from where, a report dated 3.8.2000 was received. According to the F.S.L. repori:, blood stains were found on all the articles except the plain soil. (6) After completion of usual investigation, the charge-sheet was filed in the Courtof Judicial Magistrate, First Class, Surajpur, who in turn, committed the matter to the concerned Sessions Court, from where, it;.. was received on transfer by the Fifth Additional Sessions Judge(F.T.C.) Surajpur, Surguja, who conducted thetrial and convicted and sentenced the accused/appellantas aforementioned. (7) Shri Abhay Tiwari, learned counsel appearing on behalf of the appellant, has neitherdisputed the homicidal death of the deeeased nor the involvement ofthe appellant in crimein question. He has only argued that the appellant was a person of unsound mind, therefore, he was entitled to get benefit of Section84 IPC. (8) On the other hand, Shri Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the Stafe, has opposed thiese argurtients supporting the judgment and order passed bythe Sessions Court. (9) We have heard thelearned counsel for the parties at lengtt(i and have also perusedthe record of the sessions case. (10) Section 84 of IPC provides that "Nothing is an offenee whjch is done by a person who, at the time of doing it, by reason of unsouijitilness ofmind, is incapable ofknowingthe natureofthe act.orthat he isijdoing what is either wrong or contrary to law."The crucial pointoftime at|<n/hich unsoundness ofmind should beestablished is thetime when the drjme is actually eommjtted.-The burden of proving unsoundness of mindj ^tthe relevant timelies on the accused in orderto seek the exemption prpyjded insection84. This burden is based on Section 105 ofthe Evideric^Act which envisages that "When a person is accused of any offene^, the burden of proving the existence ofcircumstaiices bringing the casej 't' . ' ••'.'•.'• '•.•••••'• '. any ofthe GeneralExceptions in the Indian Penal Code, 1860 oij within ^itHin Criminal ApoealNo. 813 of2002 any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence ofsuch Gircumstances." (11) In the matter of Dahvabhai-Vs- State of Guiarat. 1964 (7) SCR 361. the Apex Court held that "The prosecution, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 ofthe Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, under Section 105 of Evidence Act the burden of proving the existenee ofcircumstances bringing the case within the saidexception lies on the accused, and the courtshall presume the absence of such circumstances. The accused has to rebut the presumption that such circumstances did not exit, by placing material before the court sufficient to make it consider the existence of such circumstances so probable that a prudentman would act upon them. The accused has to satisfy the standard ofa 'prudent man', Ifthe material placed .before the court, such as, oral and documentary evidence, presumptions, admissions oneven the prosecution evidence, satisfies the test of 'prudent man' the acejused will have discharged his burden." (12) In the matter of Hari Sinah Gond-Vs- State of M.P.. AIR^OOS SC 31, the Apex Court held that "The standard to be applied for decsiding applicability of S. 84 is whether according to theordinary standard, adopted by reasonable men, the act was right or wrong. The mert fact that an accused is conceited, odd irascible and his brain is not quilte all right, or that the physical and mental ailments from whieh he suffered had rendered his intellect week and had affected his emotions and will, or that he had committed ceri:ain unusual acts, in the past orthat hewas liable to recurring fits of ifTsa'hity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or tln^t his behaviour was queer, cannot be sufficient to attraet the application lofthis Section. Itwas held on facts ofcasethat S. 84 had no application." -I—r-n- ^-==\. Criminal Appeal No. 813 of2002 (13) Again in the tnatter of Siddhapal Kamala Yadav -Vs- State of Maharashtra. AIR 2009 SC 97,\twas held by the Apex Court that "The onus of proving unsoundness of mind is on the aecused. But where duringthe investigation previous historyof insanity is revealed, it is the duty of an hpnest inyestigator to subjeet the accused to a meaical examination and plaee that evidence beforethe Court and ifthis iri not done, it creates a serious jnfirmity in the prosecution case and the benefit of doubt has to be given to the aceused. The onus, however, has t6 be discharged by proclucing evidence as t6 the conduct of the aceused shortly prior to the offeRce anct his conduct at thetime or immediately afterwards,also by evidence of his mental eondition and other relei/ant factors. The hurden of proof, however, is not so onerpus as that uporilthe prosecytion to prove that the aecused committed the actwith whieh he is charged. The burden on the accused is no higherthan that Festing upd,n a plaintiff or a defenctant in a civil proceeding." (14) In view ofthe aboye, ifthe cfeferiGe pf unscjundness of fflihdiv^ taken by the^ aRpellant, it was inGunibei'lt upion hjm to prove SyGh factblt. If we find out the records of investigation, it does not appear thatlljhe Investiggting Officer was ever told about the alleged insanity of!|ljKe appellant. The appellant has not been medieally examined in this Ca|se, Though, during the course oftrial, itcomes in the cross examinatjon!]of PW-4, Ram Kumar, PW-5, Ramesh Kumarand PW-6,Sunderlal;in o|ie line, that the appellant had become mad but that casual statem^rit without the instancesiis of no benefit to the appeHant. When the burcl|n was on the appellant, the defenceshould have.discharged it by quoting instances and by bringing 'on reGord, the earlier medical evidence ^. Even no efforts were made during 4he entire period of trial to get tfie appellant medicattyexaminedsothatartopirtionmayhavebeenobtairl^d regarding jalleged unsoundness of mind which defence the appetlant ^aid half-heartedly taken at the trial. THere is no lobservatiqn of thie Sessi^ Court in this regard. Even in the statementoytheapRellant,recordKJiiii^ 313 Cr.P.C., nothing has beenobseNednor^theanswerStotheetuestioh^ pjjft6ihimaregiveninsucMamariner,onvvMch,the(;ourt;may^^H^r^ ^e- ppoeeed in that Ijne. In this regard, one Ramprasacl CMoubey tias beei? 'i l' s. .%•• i^ pa Criminal ADpealNo. 813 of2002 examined as DW-1. He deposed that he had seen the appellant suffering from insanity and has also deposed that when the police came to village and tried to arrest the appellant, he was caught with the help of 30-40 persons. According to him, this was all pn account of unsoundnessof his mind. We have scrutinized the evidence of this witness in light of the evidence of Investjgating Officer, Asstt. Sub-lnspector R.B. Pandey (PW- 13), who has not quoted any such instance and has strongly denied the suggestion that when he had arrestedthe appellant, the appellant w.as not keeping good mental condition. He has specifically denied that ttae appellant was arrested with the help of 15-20 persons: Therefore, the evidence of defence witness does not appear to be reliable. (15) It is in this state of affairs, the Sessions Judge had rejected the arguments advanced by the defence counsel that the appellant was' a person of unsound mind and has denied to extend the benefit ofSection 84 IPC. (16) We do not find any reasonto take a different view, than the one which has been taken by the learned Sessions Judge. ], (17) The conviction of theappellant is based upon cogent, clinchjng an9 reliable evidence. i (18) The appeal has no merit, the same deserves to be dismiss^d and js accordingly dismissed. Sd/- Ouef Justice Sd/- SunU Kumar Sinha Judge vatSi ! !i s?