Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 863 (PAT)

Basawan Mahto v. State Of Bihar

2003-08-18

A.K.SINHA, B.K.JHA

body2003
Judgment A.K.Sinha and B.K.Jha JJ. 1. Ths sole appellant Basawan Mahto has been convicted under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- or in default of payment to undergo simple imprisonment for two months. 2. The fardbeyan (Ext. 1) of the informant, namely, Uma Devi (P.W. 3) was recorded by S.I. R.N. Prasad on 6.10.96 at 1.30 p.m. at her residence. As per the fardbeyan, the prosecution story is that on 6.10.96 at about 8.00 a.m. the appellant who happens to be the own Bhaisur of the informant, came with a spade in the courtyard. The mother of the appellant asked him to take his meal whereupon the appellant with an intention to kill assaulted his mother with spade and gave three blows. Thereafter, he came out of the house and assaulted the she buffalo tied up in front of the house on her back. On hulla, Harendra Yadav (P.W. 2) and the informants husband came and took the appellants mother to Maharajganj hospital for her treatment. The nephew of the informant, namely, Pardeshi Bhagat (P.W. 4) informed his grand-father who came and saw the occurrence. The appellants mother, however, died in course of the treatment. The police registered a case under sections 324 and 307 of the Indian Penal Code against the appellant but after the death of the deceased the case was converted under section 302 of the Indian Penal Code and the police submitted chargesheet against the appellant under section 302 of the I.P.C. The learned Magistrate took cognizance in the case and committed the case to the court of sessions for trial. 3. The appellant was charged under section 302 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried. 4. In order to prove the charge, the prosecution examined six witnesses out of whom P.W. 6 K.M. Prasad Srivastava is the doctor who conducted the postmortem examination on the dead body of the deceased. P.W. 6 has deposed that on 7.10.96 at 11.30 a.m. he conducted the postmortem examination on the dead body of the Surja Devi (deceased) and found the following ante mortem injuries on her person: (i) Incised stitched wound 4" long behind the right ear obliquely extending from head to neck. P.W. 6 has deposed that on 7.10.96 at 11.30 a.m. he conducted the postmortem examination on the dead body of the Surja Devi (deceased) and found the following ante mortem injuries on her person: (i) Incised stitched wound 4" long behind the right ear obliquely extending from head to neck. (ii) Incised stitched wound 6" long 1" below injury no. 1. On dissection, the bone under both the injuries i.e. occipital bone, temporal bone, parietal bone on right side were fractured in pieces. The fracture was depressed causing the laceration of membrane and brain substance. In the opinion of the doctor the death was caused due to the aforesaid injuries which were caused by sharp cutting weapon like spade. P.W. 6 has proved the postmortem report (Ext. 5). 5. From the evidence of P.W. 6 it is established that the deceased Surja Devi died as a result of injuries caused by sharp cutting weapon which may be spade. 6. The most important witness in the case is Uma Devi (P.W. 3) who is the informant of this case and is an eye witness to the alleged occurrence. She is the wife of the own brother of the appellant. Her evidence is that on the alleged date of occurrence at about 8.00 a.m. she was in her courtyard, her nephew Pardeshi Bhagat and mother-in-law Surja Devi were also there and her mother-in-law asked the appellant to take his meal whereupon the appellant gave spade blows on the head of his mother due to which she became unconscious. She further stated that her mother-in-law died on way to hospital. In cross-examination P.W. 3 has stated that the appellant was not insane at any point of time and after assault the appellant remained at his house and he had threatened her also to kill. There is nothing else in the cross-examination of P.W.3. 7. P.W. 4 Pardeshi Bhagat is the son of the appellant who has deposed that he was present in the courtyard when his father (appellant) came and his grandmother asked him to take meal whereupon his father assaulted the grandmother with spade. He further stated that his grandmother was taken to the hospital but on the way she died. P.W. 4 has also stated that his father (appellant) was not mad and his uncle and aunt did not neglect his father. 8. He further stated that his grandmother was taken to the hospital but on the way she died. P.W. 4 has also stated that his father (appellant) was not mad and his uncle and aunt did not neglect his father. 8. P.W. 1 Bishuni Mahto is own brother of the appellant who has stated that on getting information when he came to his house he found his mother lying with head injuries in the courtyard and his wife disclosed to him that the appellant assaulted his mother with spade. He took his mother to the hospital but she died on the way. It appears from his cross-examination that he had gone for work in the field and came to his house at about 4.00 p.m. and he had not accompanied his mother to the hospital, rather, his mother was taken to hospital by other persons. This witness has also stated that the appellant was not of unsound mind. There is nothing else in his cross-examination. 9. The evidence of P.W. 2 Harendra Yadav is similar to that of P.W. 1 and it appears that he is also not an eye-witness to the alleged occurrence and he learnt about the occurrence from the informant. 10. P.W. 5 Ram Nath Prasad is the I.O. of this case who has proved the fardbeyan (Ext.1) and the F.I.R. (Ext.2). He inspected the place of occurrence which according to him is the courtyard or the house of the informant. He also recovered the spade by which the appellant is alleged to have assaulted his mother. He seized the spade and prepared the seizure list (Ext. 3). The I.O. has stated that when the injured died, the case was converted under section 302 of the Indian Penal Code. He also prepared the inquest report (Ext. 4). It has been admitted by him that he did not send the spade for its chemical examination. The inquest report (Ext. 4) shows that the I.O. found two injuries on the back of the head of the deceased. 11. The learned counsel appearing for the appellant submitted that the appellant was of unsound mind and due to that reason he assaulted his mother but we find that his own son, brother and his wife unequivocally stated that the appellant was not of unsound mind and there is no material before us to show that the appellant was of unsound mind. 12. 12. The provision of section 84 of the Penal Code may usefully be quoted hereunder: "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." 13. The law assumes that a man is primafacie sane and the burden is upon the accused to prove that the accused at the time of committing the crime was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of act or omission or as not to know that what he is doing is wrong and if it is proved then the accused is not responsible for his act in law. In other words to earn exemption under section 84 of the Penal Code the defence has to prove insanity of the accused at the time of offending the act. To establish insanity it must be clearly proved that at the time of committing the act the accused was labouring under such defect of reason as not to know the nature and quality of the act which he was committing. It follows that it is not every form of insanity or madness that is recognised by law as a sufficient excuse. Medical insanity is different from legal insanity. Every type of insanity recognised is no legal insanity unless the cognitive faculty of mind is destroyed as a result of unsoundness to such an extent as to render one incapable of knowing the nature of the act or that what he is doing is wrong or contrary to law. All the ingredients of section 84 of the Penal Code must be fulfilled before the plea of insanity can succeed and those ingredients are, No. (a) that the accused is insane, (b) that he was insane at the time when he committed the act and not merely before or after the act and (c) that as a result of unsoundness of mind the accused is incapable of knowing the nature of the act or that he was doing what was really wrong or contrary to law. 14. 14. In the instant case there is absolutely no evidence which may show that the appellant was insane either before the occurrence took place or was suffering from legal insanity at the time when he committed the murder of his own mother. 15. On the other hand, we find that the appellants son, brother and brothers wife have testified that the appellant assaulted his mother with spade on her head which proved fatal. There appears no reason to disbelieve the evidence of the aforesaid witnesses. As such, we are of the view that the prosecution had proved the charge against the appellant beyond all reasonable doubts and the learned trial court was justified in convicting the appellant. Accordingly, the order of conviction and sentence recorded by the trial court is upheld. 16. In the result, therefore, we do not find any merit in this appeal which stands dismissed. The appellant who is in jail shall serve out the remaining part of the sentence awarded to him.