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2001 DIGILAW 134 (HP)

SARAN DAS v. STATE OF H. P.

2001-07-06

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT M.R. Verma, J.—This is an appeal preferred by the appellant accused convict (hereafter referred to as the accused) against the judgment dated 11.10.1999 passed by the learned Additional Sessions Judge, Mandi, whereby the accused has been convicted and sentenced as follows: Section under which convicted Sentence 302 IPC Rigorous imprisonment for life and fine of Rs. 2,000, in default of payment of fine, to undergo further imprisonment for one year. 307 IPC Rigorous imprisonment for 7 years and fine of Rs. 1,000 and in default of payment of fine, to suffer further imprisonment for six months. 452 IPC Rigorous imprisonment for one year and fine of Rs. 500 and in default of payment of fine, to suffer further imprisonment for 3 months. 326 IPC Rigorous imprisonment for one year and fine of Rs. 500 and in default of payment of fine, to suffer further imprisonment for one month. 324 IPC Fine of Rs. 500 and in default of payment of fine, to suffer imprisonment for one month. The substantive sentences of imprisonment imposed on the accused have been made to run concurrently. 2. Case of the prosecution against the accused, in brief, is that PW-1 Devi Dass and the accused are residents of village Shilah. The accused had sold some land to said Devi Dass and his family for which he had been given some money. However, the accused had been putting off the getting of mutation of sale attested. On 3.11.1998, at about 7 a.m., the accused, while armed with drat Ex. P-2, trespassed into the house of Devi Dass (PW-1). While entering the house, the accused was noticed by Chandi Devi, wife of PW-1 and she asked him as to where he was going. The accused replied that he was going to bring fuel wood. The accused then entered the room where PW-1 and his grand-daughter Ranjana were sleeping. The accused gave drat blow on the throat of PW-1 whereby he became unconscious and blood started oozing out of his throat. Chandi Devi tried to catch hold of the accused, but in the meanwhile, he gave drat blow to Ranjana, a child, then aged about 2 years and she also started bleeding. Chandi Devi again tried to catch hold of the accused but he escaped and entered the kitchen where he gave drat blows to Jalam Singh (PW-3), Titli (PW-2) and another child Krishna. Chandi Devi again tried to catch hold of the accused but he escaped and entered the kitchen where he gave drat blows to Jalam Singh (PW-3), Titli (PW-2) and another child Krishna. In the process, Chandi Devi also sustained injuries. Ranjana succumbed to the injuries sustained by her. The other injured were removed to Mandi for treatment. The occurrence was reported to the police by Chandi Devi vide her statement under Section 154 Cr.P.C. Ex. PW-14/ A and as a consequence, formal FIR Ex. PW-14/C was recorded at Police Station, Gohar. The investigation followed. During the course of investigation, the investigating officer prepared the marg report Ex. PW-5/C and got the post mortem of the dead body of Kumari Ranjana conducted in Zonal Hospital, Mandi, which was conducted by Dr. R.S. Datawalia (PW-7) on 4.1.1998. The post mortem report issued by PW-7 is Ex. PW-7/A and as per his opinion, the big incised wound found on the dead body of the deceased was followed by severe haemorrhage, syncope and death. The injured, namely, Titli Devi (PW-2), Devi Dass (PW-1), Kumari Krishna and Jalam Singh (PW-3) were medically examined by Dr. H.K. Abrol (PW-11) and the MLCs in respect of such medical examination issued by him are respectively Exs. PW-11/C, PW-11/F, PW-11/G and PW-11/H. As per the respective MLCs, Jalam Singh (PW-3) was found to have sustained an incised wound with a sharp edged weapon and such injury was simple in nature. Devi Dass (PW-1) was found to have sustained three injuries, two with sharp and one with blunt weapons two of which were simple and one was grievous. Titli Devi (PW-2) was found to have sustained two injuries with a sharp edged weapon, one of which was simple and another grievous. Krishna was found to have sustained one simple injury with a sharp edged weapon. Chandi Devi and Ranjana were medically examined by Dr. Desh Raj Sharma (PW-8) on 8.11.1998 at about 7.00 a.m. On such examination, he found that Ranjana was dead. A simple injury caused with a sharp edged weapon was found at the base of the right middle finger of Chandi Devi. The MLR. in this regard is Ext. PW-8/A. On inspection of the spot, the investigating officer prepared the site plan Ex. PW-15/B and took in possession from the spot the blood and blood stained wooden pieces Ex. P-4 vide memo? Ex. The MLR. in this regard is Ext. PW-8/A. On inspection of the spot, the investigating officer prepared the site plan Ex. PW-15/B and took in possession from the spot the blood and blood stained wooden pieces Ex. P-4 vide memo? Ex. PW-5/A. Sample of the soil from the spot was also taken in possession vide memo Ex. PW-5/B. On production by PW-1, one blood stained Khandolu Ex. P-l, which was laid on the bed on which he was lying at the material time, was also taken in possession by the investigating officer vide memo Ex. P-6/B. Further, during the course of investigation, the accused made disclosure statement Ex. PW-5/D regarding having kept the drat in his room. Pursuant to the said statement, drat Ex. P-2 was got recovered by the accused vide memo Ex. PW-5/E. The wearing apparels of the accused which contained blood stains and were identified by the witnesses as the clothes which the accused was wearing at the time of the occurrence, namely, shirt Ex. P-5 and Pyjama Ex. P-6 were also taken in possession by the investigating officer vide memo Ex. PW-6/A. At the time of post mortem of the deceased, her wearing apparels, namely, a shirt, Pyjama and one mala she was having around her neck at the material time, were handed over to the police by PW-7. These articles alongwith drat Ex. P-2, blood stained wooden pieces and the aforesaid wearing apparels of the deceased were sent to the State Forensic Science Laboratory for analysis and vide report Ex. PX received from the Director of the said Laboratory, all these articles were found stained with human blood of group B and human hair were also detected on the drat Ex. P-2. Ex. PW-15/C is the rough sketch of the place of recovery. The investigating officer also recorded the statements of the various witnesses under Section 161 Cr.P.C. On the basis of the material collected during investigation, the officer incharge, Police Station, Gohar, submitted a charge sheet against the accused under Sections 302, 307, 324, 326 and 452 IPC. The accused came to be tried on a charge under the aforesaid penal provisions by the learned Additional Sessions Judge, Mandi. To prove the charge against the accused, the prosecution examined as many as 15 witnesses. The accused came to be tried on a charge under the aforesaid penal provisions by the learned Additional Sessions Judge, Mandi. To prove the charge against the accused, the prosecution examined as many as 15 witnesses. The accused, in his statement under Section 313, Cr.P.C. denied the prosecution case as a whole and claimed to be innocent. The accused, however, did not lead any defence. Finally, the accused was convicted and sentenced as aforesaid. Hence the present appeal. 3. We have heard the learned Counsel for the accused and the learned I Assistant Advocate General for the State and have also gone through I the records. 4. It was contended by the learned Counsel for the accused that there are contradictions and improvements in the statements of the material witnesses raising suspicion about the veracity of the version of the prosecution. 5. To appreciate the contention of the learned Counsel, we have gone through the material on record. We do not find any such material improvements and contradictions in the statements of the material witnesses which may go to the root of the prosecution case. There are minor contradictions about the time of occurrence and sequence of events which are insignificant in character and in capable of rendering the depositions of the material witnesses as unreliable and unacceptable. 6. PW-1 has stated about the entry of the accused armed with drat in his room and then causing hurt to him and K. Ranjana who died of the injury caused to her. There is nothing immaterial for improbable in his statement. On the contrary it has been suggested to him that the accused had attacked them around 4 or 5 a.m. PW-2 and PW-3 have deposed about the causing of injuries by the accused to them and Km. Krishna. Their statements are also natural and confidence inspiring. Admission of the presence of the accused and his having caused injuries to PW-2 is unambiguously clear from the suggestion put to her in her cross-examination that she sustained the injuries at the hands of the accused near the door. She has admitted this suggestion as correct. PW-4 who was informed of the occurrence by the injured, immediately after the occurrence has corroborated the version of PW-1, PW-2 and PW-3. Their statements are further corroborated by the medical evidence viz. the statement of PW-7 read with post mortem report Ext. She has admitted this suggestion as correct. PW-4 who was informed of the occurrence by the injured, immediately after the occurrence has corroborated the version of PW-1, PW-2 and PW-3. Their statements are further corroborated by the medical evidence viz. the statement of PW-7 read with post mortem report Ext. PW-7/A, statement of PW-8 read with MLR Ext. PW-8/A and statement of PW-11 read with MLCs. Exts. PW-ll/C, PW-11/F, PW-11/G and PW-ll/H. 7. The recovery of drat Ext. P-2 at the instance of the accused vide memo. Ext. PW-5/E pursuant to the disclosure statement of the accused Ext. PW-5/D, is fully established in view of the statements of SI. Lai Chand (PW-15) and Dhameshwar Ram (PW-5). This drat Ext. P-2 was found stained with human blood of group B and hairs of human head were also found stuck to it vide report Ext. P-6. Similarly, shirt Ext. P-5 and Pyzama Ext. P-6 of the accused, taken in possession vide memo. Ext. PW-6/A duly proved by Lai Chand (PW-15) and Jai Singh (PW-6), were found stained with human blood of group B vide report Ext. PX. These circumstances also lend corroboration to the statements of PW-1, PW-2 and PW-3. 8. The evidence on record, thus, proves the charge against the accused beyond any reasonable doubt and the learned trial Judge has rightly concluded that the charge against the accused was proved. 9. It was also contended for the accused that after the death of his wife about three months before the occurrence, the accused was not mentally fit and the circumstances warrant the conclusion that at the time of occurrence he was mentally incapable of knowing the consequences of his act. 10. It is not in dispute but is admitted by the material prosecution witnesses that the wife of the accused had died a few months before the present occurrence. It has been suggested to PW-2, PW-3 and PW-4 that after the death of his wife the accused was not mentaly fit and all of them have denied the suggestion. There cannot be any dispute with the proposition that a suggestion denied by the witness is no evidence. 11. While dealing with the defence of insanity taken by the accused, this Court in Bhag Singh v. State of H.P., 2000 (2) Shim. L.C. 99, held as follows: "22. Section 84 of the Indian Penal Code reads as follows:— 84. There cannot be any dispute with the proposition that a suggestion denied by the witness is no evidence. 11. While dealing with the defence of insanity taken by the accused, this Court in Bhag Singh v. State of H.P., 2000 (2) Shim. L.C. 99, held as follows: "22. Section 84 of the Indian Penal Code reads as follows:— 84. Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.’ 23. Apparently these provisions are meant to exonerate a person of the legal consequences of his act(s) amounting to an offence(s) if such person while committing the act(s), was by reason of unsoundness of mind incapable of knowing the nature of such act(s) or that what he was doing was either wrong or contrary to law. The benefit, therefore, will be available to a person who by mental disease is prevented from controlling his own conduct and is deprived, due to such disease, of the power of passing a rational judgment on the moral or legal character of the act. To establish that an act committee by a person is not an offence in view of Section 84 supra, following conditions must be satisfied:— (a) That the accused was of unsound mind at the time of commission of the act; and (b) That by reason of such unsoundness of mind he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. 24. It may also be pointed out that the fundamental principle of Criminal Jurisprudence is that the accused is to be presumed innocent unless proved guilty and it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. However, once the prosecution has proved its case beyond any reasonable doubt, it is for the accused to prove the circumstance(s) bringing his case under any general or special exception contained in any law for the time being in force, if so claimed in defence. It is so by virtue of the provisions of Section 105 of the Indian Evidence Act which provides as follows:— 105. It is so by virtue of the provisions of Section 105 of the Indian Evidence Act which provides as follows:— 105. Burden of proving that case of accused comes within exceptions.— When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within 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 of such circumstances/ 25. Thus the accused who wants to take benefit of general or special exceptions to get himself exonerated of the offence committed by him, has to prove such exception." 12. Again, a similar question arose before this Court in Diwan Chand v. State of H.P., 2000 (2) Shim. L.C. 112, wherein it was held as under: "15. Section 84, Indian Penal Code, one of the provisions contained in Chapter IV of the Indian Penal Code, which deals with "General Exceptions" provides as under:— 84. Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.’ 16. Section 105, Evidence Act, 1872, which deals with the burden of proving the existence of circumstances bringing the case within any of the exceptions specified in the Indian Penal Code, provides:— 105. Burden of proving that case of accused comes within exceptions.— When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within 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 of such circumstances.’ Illustration (a) to the above section reads:— A, accused of murder, alleges that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.’ 17. The burden of proof is on A.’ 17. Shri M.S. Chandel, the learned Counsel for the accused has by placing reliance on the decision of the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 Supreme Court 1563, followed by a Division Bench of this Court, of which one of us was a member. In Gian Chand v. State of H.P., 1996 (2) Shim. L.J. 1167, has contended that it is for the prosecution to establish the necessary metis rea of the accused and that even though the accused may not have taken a plea of insanity or led evidence to show that he was insane when he committed an offence of which intention is an ingredient, the prosecution must satisfy the court that the accused had the requisite intention. 18. No doubt that the burden of proving an offence is always on the prosecution. But the State of mind of a person can ordinarily only be inferred from the circumstances of the case. Therefore, if a person deliberately strikes another with a deadly weapon, which is likely to cause an injury and sometimes even a fatal injury depending upon the nature, type of quality of the weapon and the part of the body on which it was struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from that act. In such cases the prosecution is deemed to have discharged the burden which rested on it to establish an essential ingredient of the offence, namely, the intention of the accused inflicting a blow with a deadly weapon. Undoubtedly, Section 84, Indian Penal Code, can be invoked by an accused to nullify the evidence led by the prosecution by establishing that he was, at the relevant time of the commission of the alleged offence, incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law- It is not for the prosecution to show that the accused was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every one is presumed to be sane and to know the consequences of his act(s). Similarly, everyone is presumed to know the law. Every one is presumed to be sane and to know the consequences of his act(s). Similarly, everyone is presumed to know the law. Such facts are not to be proved and established by the prosecution." 19. In view of the above position in law, it was for the accused to prove that at the time of commission of the offences he was of unsound mind and by reason of such unsoundness of mind he was incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. There is not even an iota of evidence to prove the aforesaid requisites. On the contrary, on the basis of the aforesaid suggestion put to the witnesses, the learned Additional Sessions Judge got the accused medically examined by Dr. R.S. Dhatwalia, the senior most Psychiatrist in the State of Himachal Pradesh who found that the accused was not suffering from any mental ailment. The contention raised for the accused, therefore, cannot be accepted. 20. As a result, we do not find any merit and substance in this appeal which is accordingly dismissed. The accused is in jail and was represented by a legal aid counsel, therefore, a copy of this judgment be sent to the concerned Jail Superintendent for information of the accused. Appeal dismissed.