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2003 DIGILAW 171 (HP)

HARDAYAL SINGH v. STATE OF H. P.

2003-07-02

M.R.VERMA, R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J.—The appellant, Hardyal Singh, hereinafter referred to as the accused, was tried by the learned Additional Sessions Judge (I), Kangra at Dharamsala for the offences under Sections 302, 323 and 307, Indian Penal Code, for having committed the murder of Chander Mohan (his nephew) and Smt. Gulabo Devi (grand-fathers sister), and for having attempted to commit the murder of Smt. Prabhi Devi (grand-mother) and for having caused simple injuries to Smt. Roshani Devi (aunt) on 7.11.1998 in village Sadhuwargran. Vide judgment dated 27.8.2001 the accused has been convicted for the offences under Sections 302 and 323, Indian Penal Code and vide order dated 30.8.2001 he was sentenced to imprisonment for life and fine of Rs. 5,000, for the offence under Section 302, Indian Penal Code. He was further sentenced to pay a fine of Rs. 500 for the offence under Section 323, Indian Penal Code. Out of the fine, if realised, a sum of Rs. 3,000 was ordered to be paid to the next kin of deceased Chander Mohan (hereinafter referred to as deceased "C") and Rs. 2,000 was ordered to be paid to the next kin of deceased Gulabo Devi (hereinafter referred to as deceased "G"). A sum of Rs. 500 was directed to be paid to the injured Smt. Roshani Devi. The accused was, however, acquitted of the offence under Section 307, Indian Penal Code. 2. The present appeal has been preferred by the accused under Section 374, Code of Criminal Procedure, assailing the conviction and sentence recorded against him by the learned Additional Sessions Judge. 3. Briefly stated, the story of the prosecution is this. On 7.11.1998 at about 9.20 a.m., the deceased "C" accompanied by PW 1 Sanni Kumar and one more boy was proceeding towards his school. The deceased "C" was then a student of Class IV while PW 1 was studying in Class II in the same school. While on the way to school the accused armed with a "Darat" met them. He asked the deceased "C" regarding the whereabouts of his parents. The deceased "C" told the accused that his mother had gone to collect fodder while his father was away to Nagrota. The accused then gave a "Dart" blow on the neck of the deceased "C" as a result of which blood started. The accused went away after causing the injury. The deceased "C" told the accused that his mother had gone to collect fodder while his father was away to Nagrota. The accused then gave a "Dart" blow on the neck of the deceased "C" as a result of which blood started. The accused went away after causing the injury. The deceased "C" after having walked for some distance towards the school, fell down by the side of a "Nallah". PW1 Sanni Kumar returned and informed his uncle PW-2 Bhima. He immediately rushed to the spot and found the deceased "C" lying unconscious with a bleeding cut wound on the neck. PW-2 Bhima had earlier seen the accused carrying a "Darat" passing in front of his shop. He carried deceased "C" to a nearby dispensary. Since no doctor was available in such dispensary, he carried the deceased "C" to the hospital at Nagrota, he was joined on the way by the mother of the deceased. The Medical Officer at Nagrota advised PW-2 to take the deceased to Zonal Hospital, Dharamsala. The deceased "C" succumbed to the injury at Zonal Hospital, Dharamsala at about 2 or 3 p.m. In the meanwhile the father of the deceased "C" had also reached the hospital. 4. The accused after having assaulted the deceased "C" had gone to the house of PW 3 Roshani Devi, who at that time was feeding her cattle. The accused hit PW-3 with the blunt side of the "Darat" on her left leg as a result of which she fell down on the ground. When she got up she saw the accused proceeding towards the house of Smt. Biasan Devi (PW-4). At that time PW-4 was watering her cattle in her compound while the deceased "G", her relative, was standing nearby. The accused on reaching there gave two "Darat" blows on the head of deceased "G". When he tried to go towards PW-4, she picked up a "Danda" and raised cries whereupon the accused ran away towards the jungle. The deceased "G" died due to the "Darat" blows given on her head by the accused. 5. The accused was apprehended by PW 6 Suresh Kumar and other villagers from near the water tank. The police was informed by PW 5 Sunku Ram. The police on reaching the spot took into possession the dead body of deceased "G". Inquest report was prepared. The police took into possession blood from the spot. 5. The accused was apprehended by PW 6 Suresh Kumar and other villagers from near the water tank. The police was informed by PW 5 Sunku Ram. The police on reaching the spot took into possession the dead body of deceased "G". Inquest report was prepared. The police took into possession blood from the spot. The blood stained shirt of Smt. Premi Devi was also taken into possession. The "Darat" (Ex. P-l) which was blood stained and which was snatched from the hand of the accused by PW 6 Suresh Kumar was also taken into possession. 6. The police also inspected the spot where the deceased "C" was attacked by the accused. During the course of investigation, the two injured ladies, namely, Premi Devi and PW 3 Roshani Devi were got medically examined. The dead body of the two deceased were got subjected to post mortem. 7. On completion of the investigation, the accused was sent up for trial. He was charged for the offences under Sections 302, 307 and 323 of the Indian Penal Code. He pleaded not guilty to the charge and claimed trial. 8. The prosecution in support of its case examined fifteen witnesses in all. 9. The defence taken up by the accused in his statement recorded under Section 313, Code of Criminal Procedure, is that of denial. In answer to question No. 26 of his statement, he stated in the following terms: "God knows that I am innocent. I was suffering with mental sickness 4/5 days prior to the alleged date of occurrence. I was not in the control of my act and conduct. My family members were looking after my daily route and were making me to sit or lie and were administering me food. All these facts were told by my family to the police, but not taken care intentionally by the police to make a false case against me." 10. Three witnesses were examined by the accused in his defence. DW-1 Shri Om Parkash Makkar is the Press-Correspondent of the Hindi daily "Punjab Kesari". News item Ex. DA with regard to the present case was published on his report. In such news item, it is recorded that the accused was suffering from some mental ailment for the last few days. DW 2 Smt. Kamla Devi is the wife of the accused. News item Ex. DA with regard to the present case was published on his report. In such news item, it is recorded that the accused was suffering from some mental ailment for the last few days. DW 2 Smt. Kamla Devi is the wife of the accused. She has deposed that since 4/5 days prior to the occurrence the accused was not mentally fit. His behaviour was not normal. DW 3 Dr. Sangita Gupta has proved on record the outdoor patient slip Ex. DW 3/B. She could not however state if the same was in respect of the accused or some other patient. 11. It may be noticed that during the course of trial, an application was made by the accused under Section 329, Code of Criminal Procedure, for getting himself medically examined by a Psychiatrist. Such application was allowed by the learned trial Court on 4.5.2000 and the accused was directed to be examined by a Psychiatrist. The accused came to be examined by DW-3 on 11.5.2000 by DW 3 Dr. Sangeeta Gupta. Her statement was recorded in court on 24.5.2000. She stated that pursuant to her examination, the accused was not found to be Psychiatric that is person of unsound mind. 12. From the trend of cross-examination of various witnesses of the prosecution, the defence put forth by the accused appears to be that of insanity. 13. The learned Additional Sessions Judge upon consideration of the evidence coming on record, while acquitting the accused of the offence under Section 307, Indian Penal Code, convicted and sentenced him for the offences under Sections 302 and 323, Indian Penal Code, as aforesaid. 14. Be it stated that the acquittal of the accused of the offence under Section 307, Indian Penal Code, has not been assailed by the State by way of an appeal. Such acquittal has, thus, become final. 15. The fact that the accused caused the death of the two deceased C and G and simple injuries to PW 3 Roshani Devi is not disputed. The only point urged by Shri Trilok Chauhan, Advocate, the learned Counsel for the accused, is that the accused was a person of unsound mind and he was not in a position to know or realise the nature of the acts which he was committing and as such the accused is entitled to the benefit of Section 84, Indian Penal Code. It was further contended by the learned Counsel that mens rea being an essential ingredient of the offences with which the accused was charged, his conviction with respect of such offences cannot be sustained for the simple reason that no intention to cause death or hurt could be possibly attributed to a person who, when he committed the acts, was insane. 16. 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." 17. 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 I860), 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." 18. Shri Chauhan, the learned Counsel for the accused, by placing reliance on the decision of the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, which was followed by a Division Bench of this Court in Gian Chand v. State of HP., 1996 (2) Sim. LJ. The burden of proof is on A." 18. Shri Chauhan, the learned Counsel for the accused, by placing reliance on the decision of the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, which was followed by a Division Bench of this Court in Gian Chand v. State of HP., 1996 (2) Sim. LJ. 1167, has contended that it is for the prosecution to establish the necessary mens rea of the accused and that even though the accused may not having taken the plea of insanity or led evidence to show that he was insane when he committed the offence(s) of which intention is an ingredient, the prosecution has necessarily to satisfy the court that the accused had the requisite intention. 19. It is well settled that having regard to the provisions contained in Section 105, Evidence Act, 1872, every person who has attained the age of discretion is presumed to be sane and as such liable for the acts constituting a criminal offence if done with the requisite knowledge or mens rea and if such person, accused of an offence, wants to avoid his culpability by bringing his case within any of the provisions contained in Chapter-IV of the Indian Penal Code with regard to the "general exceptions", the burden lies upon him to prove that he was entitled to the benefit in this regard under a particular provision. 20. Dealing with Section 84, Indian Penal Code, the Honble Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, has observed:— "When a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime." (Emphasis supplied) 21. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime." (Emphasis supplied) 21. Much reliance was placed by the learned Counsel for the accused on the following observations of the Honble Supreme Court in the above referred to case:— "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite means rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged." 22. Dealing with the above passage, the Honble Supreme Court in Bhikari v. The State of Uttar Pradesh, AIR 1966 Supreme Court 1, has observed:— "This passage does not say anything different from what we have said earlier. Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act." 23. In Jai Lal v. Delhi Administration, AIR 1969 SC 15, it was held:— "To establish that the acts done are not offences under Section 84, it must be proved clearly that at the time of the commission of the Act the appellant by reason of unsoundness of mind was incapable of either knowing that the acts were either morally wrong or contrary to law. The question is whether the appellant was suffering from such incapacity at the time of the commission of the acts. On this question, the state of his mind before and after the crucial time is relevant. If a person 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 he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled to an acquittal." 24. The above principle was reiterated in Vijayee Singh and others v. State of U.P., AIR 1990 SC 1459. Further dealing with Section 105, Evidence Act, 1872, and the nature of "burden of proof" placed on the accused, it has been held :— "The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places burden of proof on the accused in the first part and in the second part we find a presumption which the court can draw regarding the absence of the circumstances which presumption is always rebuttable. Section 105 places burden of proof on the accused in the first part and in the second part we find a presumption which the court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the burden of proof and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, Chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal." 25. The above principle of law as laid down by the Honble Supreme Court was followed by this Court in Diwan Chand v. State of Himachal Pradesh, 2000 (2) Shim. L.C. 112, and in Bal Bahadur v. State of H.P., 2001 (3) Crimes 108. 26. To earn exemption under Section 84, Indian Penal Code, the accused has to prove insanity at the time of commission of the offending act. L.C. 112, and in Bal Bahadur v. State of H.P., 2001 (3) Crimes 108. 26. To earn exemption under Section 84, Indian Penal Code, the accused has to prove insanity at the time of commission of the offending act. Behaviour antecedent, attendant and subsequent to the event may be relevant in finding the mental condition at the time of the event but not those remote in time. 27. The Honble Supreme Court in State of M.P. v. Ahmadulla, AIR 1961 SC 998, has cited and followed the following observations of Reading C.J.:— "Every man is presumed to be sane and to possess sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing that is, the physical nature and quality as distinguished from the moral—or, if he does know the nature and quality of the act he is committing that he does not know that he is doing wrong." 28. To the similar effect are the observations in Dahyabhai v. State of Gujarat, AIR 1964 SC 1563 and in Shikari v. State of U.P., AIR 1966 SC 1. 29. All that has come in evidence in the present case in the form of the statement of DW 2, the wife of the accused, is that the accused since few days before the occurrence was behaving abnormally and was taking medicine. The medical evidence on the other hand shows that the accused was not suffering from any mental ailment. Though DW 2 has stated that the accused was taking medicines, nothing has come on the record as to what medicines were being taken, who had prescribed the same and for what ailment. 30. As pointed out above the accused, at his own request during the course of trial was referred to a Psychiatrist and was examined by DW 3 on 11.5.2000. He was found to be sane and sound person. 31. Under the law the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. He was found to be sane and sound person. 31. Under the law the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. The question whether the accused was in such state of mind as to he entitled to the benefit of Section 84 Indian Penal Code, can only be established and determined from the circumstances which preceded, attended and followed the crime. 32. Since the accused has failed to prove that he was of unsound mind at the time of commission of the offences and was incapable of knowing the nature of his acts, he is not entitled to the benefit of Section 84, Indian Penal Code. He stands rightly convicted and sentenced for the two offences under Sections 302 and 323, Indian Penal Code. Resultantly, the present appeal, being devoid of merits, fails and is dismissed accordingly. Appeal dismissed.