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2003 DIGILAW 493 (PAT)

State v. Chini Sah

2003-04-28

ASHOK KUMAR VERMA, S.N.JHA

body2003
Judgment Ashok Kumar Verma, J. 1. Death Reference No. 6 of 2000 and Cr. Appeal No. 515 of 2000 both arise out of the same judgment and order of conviction and sentence passed by the Additional Sessions Judge XII, Saran at Chapra in Sessions Trial No. 318 of 1993. By the impugned Judgment and Order, the learned Additional Sessions Judge has convicted and sentenced the accused Chini Sah (appellant in Cr. Appeal No. 515 of 2000) under Sections 302, 201 I.P.C. and ordered him to be hanged by neck till he is dead, subject to confirmation of the sentence by the High Court. Therefore, the Death Reference No. 6 of 2000 and Cr. Appeal No. 515 of 2000 are disposed of by this common judgment. 2. Earlier the aforesaid Death Reference and Cr. Appeal were heard by another Bench of this Court and by the order dated 24th May, 2002 the case was remanded to the trial court with a direction to hold an enquiry and to record additional evidence on the point of insanity of the appellant at the time of alleged commission of the offence and his capacity to defend himself during trial. Thereafter on 23.9.2002, the learned Additional Sessions Judge issued letter to the Jail Superintendent and Civil Surgeon, Chapra for submitting medical report after constituting Medical Board for examination of the accused on the point of insanity. During enquiry, Dr. Jai Prakash Singh (P.W. 8), Gautam Manjhi (P.W. 9), Dr. Krishna Mohan Singh (P.W. 10), Dr. Umesh Sharma (P.W. 11), Dr. Parmeshwar Pandey (P.W. 12) and Dr. H.N. Banerjee (P.W. 13) were examined by the court below. The report of the Medical Board is Ext. 7. 3. This case was instituted on the fardbeyan of Chaukidar Rameshwar Yadav. In short the case of the prosecution is that accused Chini Sah had cut both hands and neck of his mother and fled with the cut portions of the body of his mother. The body of the deceased was lying at her door when the informant reached there. Then the informant proceeded towards the Police Station and the Sub-Inspector of Police met in the way and they proceeded in the direction where the accused had fled away. The people informed them in the way that a person with cut hands and neck wrapped in a gamchha in one hand and Garasi in another hand had been seen going. Then the informant proceeded towards the Police Station and the Sub-Inspector of Police met in the way and they proceeded in the direction where the accused had fled away. The people informed them in the way that a person with cut hands and neck wrapped in a gamchha in one hand and Garasi in another hand had been seen going. When the informant and Sub- Inspector of Police reached near a canal, they saw the accused running away with the severed head and hands of the deceased and Garasi and they caught him. At that time the accused told the informant and the Sub-Inspector of Police that his mother had put evil spirit on him and due to that he always remained disturbed and so he had cut the head and both hands of his mother. The Sub-Inspector of Police seized the severed parts of the body of the deceased and Garasi and prepared seizure list and arrested the accused. The Fardbeyan of the informant was recorded by the Sub-Inspector of Police, Rasoolpur PS. at the house of the deceased Basmati Devi on the same day i.e. 16.8.1991 at 15.00 hours. On the basis of the Fardbeyan formal F.I.R. (Ext. 5) was drawn in this case. After investigation police submitted charge-sheet against the accused under Sections 302 and 201 I.P.C. 4. The defence of the accused is that he had developed the tendency of lunacy since 2-3 months before the occurrence. 5. During trial seven witnesses were examined on behalf of the prosecution and one witness was examined on behalf of the defence. According to prosecution the appellant had severed the head and two hands of the deceased, who was his mother, as a result of which she had died. P.W. 4 is Arbind Kumar Gupta, a Civil Assistant Surgeon, who had conducted the post mortem examination on the dead body of the deceased Basmati Devi. According to him, the body was sent with two in- quest reports and Chalans out of which one Chalan was for the head and two forearms in one block and the rest of the body in other Chalan, and he had found as follows: (i) Head chopped off at the level of chin, tissues sharply cut but the margin well contused and bruised head belonged to the body. (ii) Both forearms amputated at elbows by sharp cut object with contused margin. (ii) Both forearms amputated at elbows by sharp cut object with contused margin. Forearms also belonged to the body sentt. He has stated that both the injuries were caused by heavy sharp cutting object may be Garasi and in his opinion death was due to chopping off of head from the body. He has said in his cross-examination that he has not mentioned in the report that the deceased had bangles. No other question had been asked in his cross- examination. The prosecution case that the murder of the deceased was committed by severing her head from her body and cutting of her two hands, is proved by the medical evidence. P.W. 5 Krishna Sah has been declared hostile by the prosecution and P.W. 6 Sheo Kumar Sah has been tendered by the prosecution. 6 It was argued by the learned counsel of the appellant that he had committed the said crime due to unsoundness of his mind and he had no sense of understand- ing and therefore he is entitled to get benefit of Section 84 of the I.PC. It was contended by the learned State Counsel that there is nothing on record to show that prior to the occurrence the accused was mentally unsound and that he was of unsound mind soon after the occurrence. According to Section 84 of the I.P.C. 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. Therefore, to attract the benefit of Section 84 of the I.P.C. (hereinafter mentioned as Code), the state of mind of the accused at the time of commission of crime is relevant and for that the accused should be of unsound mind at that time itself and utmost immediately before and after the commission of crime. The accused cannot take benefit of Section 84 of the Code at a later stage. So the plea of insanity of the accused is to be viewed with respect to time of occurrence. 7. P.W. 1 Rameshwar Yadav is a Chaukidar, who is informant of this case. He has supported the prosecution case as stated by him in his fardbeyan. The accused cannot take benefit of Section 84 of the Code at a later stage. So the plea of insanity of the accused is to be viewed with respect to time of occurrence. 7. P.W. 1 Rameshwar Yadav is a Chaukidar, who is informant of this case. He has supported the prosecution case as stated by him in his fardbeyan. According to him, on the date of occurrence i.e. on 16.8.1991, he had reached at the door of the accused appellant on hulla and there he had learnt that the accused Chini Sah had fled away after cutting the head and two hands of his mother, which he had wrapped in a cloth. He had seen the dead body of the deceased and when he was proceeding towards the Police Station, he met the Daroga to whom he narrated about the occurrence. He has further stated that he caught the accused while he was running away by the side of a canal with severed head and both severed hands of the deceased wrapped in a Gamchha and with a Garasi which had blood stains. RW. 2 Surendra Thakur and P.W. 3 Awadhesh Kumar Verrma, both are seizure list witnesses. Both these witnesses had been examined in respect of the seizure list but in their cross-examination they have tried to help the accused. Both of them have said that the Daroga had seized severed head and hands of the lady from accused Chini Sah and prepared seizure list before them and they had signed on the seizure list. P.W. 2 Surendra Thakur has said in his cross-examination that the Daroga had taken his signature at the Police Station. P.W. 3 Awadhesh Kumar Verma has said in his cross-examination that accused Chini Sah had tendency to flare up from before the occurrence. It has been held by Supreme Court in the Case reported in AIR 1997 Supreme Court 1830 that it is now well settled that even evidence of hostile witness also to the extent it corroborates the prosecution version can be relied upon Khuiji alias Surendra Tiwari V/s. State of Madhya Pradesh, AIR 1991 SC 1853 and Sat Paul V/s. Delhi Administration, AIR 1976 SC 294 . Therefore, in the facts and circumstances of the case and in view of the statements made by these two witnesses in their examination-in-chief, it is conclusively proved that the severed head and hands of the deceased lady were seized by the Daroga, who had prepared seizure list. P.W. 7 Dinkar Dassi is a witness of formal nature, who has proved Ext. 4 (Fardbeyan), Ext. 5 (formal F.I.R.) and Ext. 6 (pages 1 to 26 of the police case diary) in the writing and signature of Brij Mohan Prasad, Sub-Inspector of Police. D.W. 1 is Vinay Kumar Srivastava, Incharge clerk of Chapra Jail, who has proved Ext. A letter dated 30.9.1991 of the Superintend- ent Chapra Jail addressed to the C.J.M., Saran, Chapra for sending the accused to Mansik Arogya Shala, Kanke, Ranchi for treatment and Ext. B true copy of the medical report dated 26.9.1991 of Dr. R.K. Sinha, Sadar Hospital, Chapra. The occurrence of this case had taken place on 16.8.1991. 8. The statement of accused Chini Sah had been recorded under Sec. 164 Cr.P.C, which is Ext. 8. This statement was recorded on 20.8.1991 and the occur- rence is of 16.8.1991. According to this statement of the accused under Section 164 Cr.P.C. he had committed murder of his mother Basmati Devi by Garasi and he had committed the murder of his mother as she had influenced him by evil spirit. The learned Judicial Magistrate has made an endorsement on the statement of the accused made u/s 164 Cr.P.C. that he had explained to Chini Sah that he was not bound to confess and if he does so his confession can be used as evidence against him. The learned Judicial Magistrate has also mentioned in his en- dorsement that he is satisfied that the confession has been made voluntarily. The statement was recorded by the Judicial Magistrate himself and it was read over by him to the accused and he had admitted it to be correct. Admittedly, when the accused had made statement under Sec. 164 Cr.P.C. only after a few days of the occurrence, he had not taken any plea of insanity. Therefore the subsequent letter of the Jail Superintendent (Ext. A) and the copy of the medical report (Ext. Admittedly, when the accused had made statement under Sec. 164 Cr.P.C. only after a few days of the occurrence, he had not taken any plea of insanity. Therefore the subsequent letter of the Jail Superintendent (Ext. A) and the copy of the medical report (Ext. B), which are dated 30.9.1991 and 26.9.1991 respectively are of the dates after more than one month of the statement of the accused recorded under Sec. 164 Cr.P.C. There is no material on record to show that the accused appellant was of unsound mind prior to the commission of the crime or for sometime after the commission of the crime. The fact that the accused appellant was caught with the severed head and hands of the deceased while running away and the above evidence adduced on behalf of the prosecution and the statement of the accused made under Sec. 164 Cr.P.C. recorded by a Judicial Magistrate, prove beyond all reasonable doubts that the accused appellant Chini Sah has committed the murder of his mother. 9. On the plea of insanity the point of time for ascertaining the state of mind of the accused is the time when the offence was committed. For getting the benefit of insanity, the state of mind of the accused at the time of commission of the offence is relevant. It is relevant to mention that the occurrence had taken place on 16.8.1991 and the plea taken by the accused regarding his insanity is to be viewed with reference to that date i.e. 16.8.1991. It appears from the record that on 19.6.1993 the then Additional Sessions Judge, who was in seisin of the case had framed charges against the accused for the offences under Sections 302, 201 I.P.C., which was read over and explained to him which he denied. The learned Additional Sessions Judge has mentioned in his order dated 19.6.1993 that while making denial he simply said no and except this he did not explain anything and from the manner and motive with which the offence is alleged to have been committed and from the fact that the accused was absolutely silent on several questions of the court on charge matter, he feels that he is a bit mentally upset and he directed the jail authority to produce the accused before Civil Surgeon, Chapra for his medical examination and report on his present mental health. The said order was passed by the learned Additional Sessions Judge on 19.6.1993 and the occurrence is of 16.8.1991. Therefore, the mental condition of the accused after one year and ten months of the occurrence will be of no help to him for escaping from the punishment of committing the murder. The Additional Sessions Judge has mentioned the word "I feel that he is, a bit mentally upset". When the accused had denied the charges framed against him, there was no occasion for the Sessions Judge to express his such feelings at that stage. According to Sec. 228(2) of the Code of Criminal Procedure where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. In the present case the accused had denied the charges. This clearly shows that the accused had not pleaded guilty of the offences charged. In the order dated 23.6.1993, the Sessions Judge has men- tioned that a letter had been received from the District Jail, Chapra in which prayer had been made to allow the accused Chini Sah for sending him for Psychotherapy in the Mansik Chikitsalaya, Kanke (Ranchi) and he had allowed the prayer. When the court below had directed the jail authority to produce the accused before Civil Surgeon for medical examination and report on his present mental health, he should have made a reference of it in his order while allowing the prayer of the jail authority, but there is no mention of it. In his order dated 22.1.1994 he has men- tioned that the contents of charge read over and explained to the accused in Hindi to which he admitted that he had cut off the head of his mother and killed her but explained that he had gone mad and this was the reason for his act of killing her. So there are different statements and opinion between 16.8.1991 i.e. the date of occurrence and 22.1.1994. According to F.I.R. the accused had said that his mother had put evil spirit on him and due to that he always remained disturbed and so he had cut the head and both hands of his mother. So there are different statements and opinion between 16.8.1991 i.e. the date of occurrence and 22.1.1994. According to F.I.R. the accused had said that his mother had put evil spirit on him and due to that he always remained disturbed and so he had cut the head and both hands of his mother. On 19.6.1993 the Additional Sessions Judge after framing charge against the accused and when he had denied the charges, had directed the jail authority to produce him before Civil Surgeon for his medical examination and report on his present mental health. Thereafter, on 22.1.1994 when the contents of the charges were read over and explained to the accused in Hindi, he had admitted that he had cut off the head of his mother and killed her but explained that he had gone mad and this was the reason for his act of killing her. Then by the order dated 24th May, 2002 passed by another Bench of this court, the case was remitted to the court below with direction to hold an enquiry and record additional evidence on the point of insanity of the appellant at the time of alleged commission of the offence by the appellant and his capacity to defend him self during trial. Thereafter, the court below after conducting the said enquiry sent the case record to this court. In this way more than 11 years have passed from the date of occurrence of this case. Mental condition of an accused existing after about 11 years of the occurrence cannot be taken to be same as at the time of occurrence. When plea of insanity is taken the crucial point of time for considering the state of mind of the accused is the time when the offence was committed. There is no material on record to show that the accused was of unsound mind at any time before committing the offence or till some time after the commission of the crime. From the facts and circumstances, it appears that the accused has taken the plea of insanity after commission of the offence to escape from the punishment. 10. There is no material on record to show that the accused was of unsound mind at any time before committing the offence or till some time after the commission of the crime. From the facts and circumstances, it appears that the accused has taken the plea of insanity after commission of the offence to escape from the punishment. 10. When the case was remitted back to the court below to hold an enquiry and to record additional evidence on the point of insanity of the appellant at the time of alleged commission of the offence by the appellant and his capacity to defend himself during trial, six witnesses were examined by the court below. P.W. 8 is Dr. Jai Prakash Singh, a member of the Medical Board. According to him they had examined the convict Chini Sah on 27.9.2002. According to him, the Medical Board was of opinion that the mental condition of Chini Sah is abnormal. Ext. 7 is the report of the Medical Board. It has been stated in the Ext. 7 that the Board reached at an opinion that the mental condition of Chini Sah is abnormal. It clearly shows that the Medical Board which had examined the convict on 27.9.2002 has given its opinion about the mental condition of the accused as it was on 27.9.2002 i.e. after 11 years of the occurrence of this case. P.W. 9 is Gautam Manjhi an Advocates Clerk and a witness of formal nature, who has proved Ext. 8 photo-copy of the letter dated 28.10.1996 of Dr. P.K. Singh Associate Professor of P.M.C.H., Patna addressed to Superintendent, P.M.C.H., Patna. This letter relates to examination of two under trial prisoners Ram Balak Raut and Chini Sah and it has been stated in it that such patients should ideally be referred to Ranchi Mansik Arogyashala, Ranchi as no reliable information is available regarding patients symptoms. So on 28.10.1996 when Dr. P.K. Singh had examined the convict, no reliable information regarding patients symptoms were available. Therefore, it cannot be said that accused appellant Chini Sah was of unsound mind. P.W. 10 is Dr. Krishan Mohan Singh. According to him, he is posted at District Jail, Chapra since July, 1999 and he was one of the members of the Medical Board constituted by Civil Surgeon, Chapra and convict Chini Sah was produced before the Medical Board and they had examined him. P.W. 10 is Dr. Krishan Mohan Singh. According to him, he is posted at District Jail, Chapra since July, 1999 and he was one of the members of the Medical Board constituted by Civil Surgeon, Chapra and convict Chini Sah was produced before the Medical Board and they had examined him. He has stated that after examination, the Board came to the conclusion that the mental condition of Chini Sah was abnormal. He has proved Ext. 7 which is report of the Medical Board dated 27.9.2002, which has been referred above. When this witness is posted at District Jail, Chapra since July, 1999 only, he is not a competent witness to tell about the mental condition of the accused prior to July, 1999. P.W. 11 is Dr. Umesh Sharma, who was also a member of the Medical Board constituted by the Civil Surgeon. According to him also all the members had examined the convict Chini Sah on 27.9.2002. P.W. 12 is Dr. Parmeshwar Pandey. According to him, he alongwith Dr. Shaligram Vishwakarma had examined Chini Sah on 13.7.1993 and prior to that on 2.6.1993 he had written to Civil Surgeon and Jail Superintendent for recheck up of Chini Sah at Kanke Mental Hospital, Ranchi. He has proved Ext. 9, the photo-copy of the report dated 13.7.1993. He (P.W. 12) has said that he was posted in District Jail, Chapra on deputation since January, 1993 to December, 1994. Ext. 9 was addressed to the Chief Medical Officer, Chapra and according to it Dr. S. Vishwakarma alongwith Dr. Parmeshwar Pandey, Medical Officer, Jail had examined the accused Chini Sah in Chapra Jail. This witness was examined during enquiry on 4.10.2002. P.W. 13 is Dr. H.N. Banerjee and according to him he was posted as Civil Surgeon in Sadar Hospital, Chapra in the year 1996 and he had constituted Medical Board for mental examination of accused Chini Sah. According to him, on examination the Board found that Chini Sah was conscious partially, co-operative, dull, memoryimpaired, attitude variable and not taking care of himself even in clothing, food, cleanliness and daily needs and the Board was of unanimous opinion that he was mentally abnormal and he was referred to Ranchi Mansik Arogyashala, Kanke for further treatment. Ext. 10 is the report of Medical Board dated 26.3.1996. During enquiry the materials which have been brought on record are from the year 1993 and onwards. Ext. 10 is the report of Medical Board dated 26.3.1996. During enquiry the materials which have been brought on record are from the year 1993 and onwards. The occurrence had taken place on 16.8.1991. There is no material on record to show that the accused appellant was of unsound mind at any time before the occurrence or even till sometime after the occurrence. It cannot be inferred from the evidence of P.Ws. 8, 9, 10, 11, 12 and 13 and Exts. 7 and 9 and the evidence adduced during enquiry that the accused appellant Chini Sah was suffering from insanity at the time of occurrence. 11. In the facts and circumstances of the case and from the materials available on record, it cannot be inferred that the commission of offence by the convict Appellant was a result of unsoundness of mind. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused appellant Chini Sah has committed the murder of the deceased, who was his mother. The appellant has been under shadow of the trial for charge of murder for more than nine years and he has been under shadow of punishment of death for more than two and half years. i.e. since 29.8.2000, the day he was ordered to be hanged by neck till death, by the learned Additional Sessions Judge. In view of the mental agonies which the accused appellant has suffered for about nine years during trial for the charge of murder and in addition to that for more than two and half years after the order of his punishment with death, sentence of R.I. for life will meet the ends of justice. Therefore, punishment of death awarded to the accused appellant by the learned Additional Sessions Judge, is commuted into the imprisonment for life. 12. With the above modification in the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, this Criminal Appeal is dismissed and Death Reference No. 6 of 2000 is disposed of accordingly. S.N.Jha, J. 13 I agree.