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2011 DIGILAW 85 (RAJ)

Nand Lal v. State of Rajasthan

2011-01-11

KAILASH CHANDRA JOSHI, PRAKASH TATIA

body2011
JUDGMENT TATIA, J. (1) HEARD learned counsel for the parties. This appeal is directed against the judgment of conviction and order of sentence dated 30.6.2003 passed by the Court of learned Additional Sessions Judge (FT), Jodhpur in Sessions Case No.85/2003 by which the learned trial court convicted and sentenced the accused appellant Nand Lal as under :- Conviction Sentence Sec.302 IPC Life Imprisonment and fine of Rs.200/- in default to further undergo one month's RI. Sec.498A IPC 3 years' RI and fine of Rs.100/- in default to further undergo 15 days'RI Brief facts of the case are that on 27.2.2003, complainant Miss Sonu, daughter of the appellant Nand Lal and victim Smt.Renu, who was of the age of 18 years, lodged a written report in Police Station Chopasani Housing Board, Jodhpur stating that her father (appellant) was of quarreling nature and used to quarrel with her mother Smt.Renu (victim). On 27.2.2003, at about 9:15 PM, when the complainant's mother was cooking meal and her younger brother Raju and younger sister Asu were at home, her father came and demanded money from her mother and when her mother refused to give money, her father took a borer (pointed iron rod with wooden handle) and tried to kill the complainant's mother. The victim shouted and ran outside the house and tried to go to the house of neighbour Om Prakash to save herself but the appellant ran after the victim to kill her. The complainant and her brother and sister in order to save their mother, went after their mother. The appellant inflicted injury on the head of the victim at the time when she was just entering into the house of Om Prakash. The victim fell down and became unconscious. Number of neighbours collected there but the appellant ran away. The victim was taken to Mahatama Gandhi Hospital, Jodhpur in the taxi of one Nari Sindhi where the complainant's mother was declared dead. (2) ON this written report, criminal case No.41/2003 was registered for committing of offence punishable under Section 302 IPC and investigation was conducted. After investigation, challan was filed against the accused appellant where he was charged for offence punishable under Sections 302 and 498A IPC. The appellant denied the charges and sought trial. (2) ON this written report, criminal case No.41/2003 was registered for committing of offence punishable under Section 302 IPC and investigation was conducted. After investigation, challan was filed against the accused appellant where he was charged for offence punishable under Sections 302 and 498A IPC. The appellant denied the charges and sought trial. During trial, the prosecution examined as many as fifteen witnesses including PW1 Miss Sonu d/o appellant, PW2 Raju s/o appellant and PW4 Miss Asu d/o appellant who supported the prosecution story. Total 40 documents were exhibited. The statement of accused appellant was recorded under Section 313 Cr.P.C. wherein the accused stated that the evidence is false or he has no knowledge about the fact stated in evidence, then he stated that the character of his wife was bad. He stated that he was given treatment for mental disorder and he was falsely implicated in the case. (3) AFTER hearing the arguments, the learned trial court rejected the plea of the appellant that he is entitled to the benefit under Section 84 IPC as he was not an insane person and there is no evidence on record that the offence was committed when the appellant was in a state of insanity. The trial court observed that the appellant himself gave appropriate answers to the questions put to him during his statement under Section 313 Cr.P.C. and it was burden upon the defence to take a plea and prove the fact that at the time of commission of offence, the accused was insane but in this case, neither the plea was taken nor the fact has been proved by the defence that at the time of commission of offence, he was insane person. The trial court relied upon the evidence of the prosecution and convicted the appellant. Hence, the appellant has preferred this appeal. (4) LEARNED counsel for the appellant again reiterated that the appellant was entitled to the benefit of Section 84 IPC. In support of his plea, learned counsel for the appellant submitted that the appellant's daughter, who is complainant herself, admitted that her father (appellant) was mentally sick. PW2 Raju, son of appellant, who was of the age of 15 years, also admitted that his father was admitted in the mental hospital though 3-4 years ago. In support of his plea, learned counsel for the appellant submitted that the appellant's daughter, who is complainant herself, admitted that her father (appellant) was mentally sick. PW2 Raju, son of appellant, who was of the age of 15 years, also admitted that his father was admitted in the mental hospital though 3-4 years ago. He also admitted that his father used to behave like a person with mental sickness and used to beat the family members. It is submitted that when these facts came in the knowledge of the trial court, then the trial court should have proceeded to hold enquiry. Not only this, but even another child witness PW4 Miss Asu, daughter of the appellant, who was of the age of 10 years, also admitted that her father got treatment for mental sickness and yet her father was behaving like an insane person. Learned counsel for the appellant also submitted that the trial court wrongly convicted the appellant for offence punishable under Section 498A IPC in a situation when long ago, the marriage of the appellant took place with the victim and his first daughter was of the age of 18 years, second son was of the age of 15 years and third daughter was of the age of 10 years, and there is no material evidence in support of the allegation of demanding dowry by the appellant. (5) LEARNED public prosecutor supported the judgment and order passed by the trial court convicting the appellant and sentencing him accordingly. He submitted that there are three children of the appellant and all three supported the prosecution case and their testimony is very reliable testimony. Another witness is PW5 Om Prakash who is neighbour of the appellant and had no enmity with the appellant. He also corroborated the statement of above three witnesses. It is also submitted that independent witness PW9 Daulat Ram who also had no enmity with the appellant, has clearly stated that the appellant killed the victim. (6) WE considered the submissions of learned counsel for the appellant and learned public prosecutor as well as perused the record. The complainant, who was of the age of 18 years, is the daughter of the appellant and she lodged FIR Ex.P/1 narrating how incident occurred. (6) WE considered the submissions of learned counsel for the appellant and learned public prosecutor as well as perused the record. The complainant, who was of the age of 18 years, is the daughter of the appellant and she lodged FIR Ex.P/1 narrating how incident occurred. She clearly stated that her brother Raju and her sister Asu were also in the house when quarrel took place between the appellant and their mother, the victim. There is no evidence on record by which any inference can be drawn that these three children would concoct a false story against their own father apart from the fact that the statements of the complainant and eye witnesses PW1 Sonu, PW2 Raju and PW4 Asu corroborated each other and their statements appear to be quite natural when they narrated how the incident occurred. These witnesses were cross examined but nothing came out from the cross examination so as to create any doubt on the credibility of these witnesses. The FIR was lodged when the victim was in the hospital and the complainant was present with the victim. Therefore, any possibility of tutoring the complainant cannot arise. Witnesses PW1 Sonu, PW2 Raju and PW4 Asu clearly stated that the injuries were inflicted by their father upon their mother by a borer (pointed iron rod with wooden handle). These statements are corroborated by the statements of PW5 Om Prakash and PW9 Daulat Ram. Therefore, the trial court was right in holding the appellant guilty for causing injury to the victim which as per the medical evidence available on record was sufficient to cause death in ordinary course. Witness PW3 Dr.MP Joshi examined the body of the deceased in the Government Hospital and found that there were total 11 injuries on the body of the deceased which include injuries no.6, 7, 9 and 10 which were piercing injuries caused on the vital part of the body and the victim died because of the injuries no.6 and 10. He proved the post mortem report Ex.P/9. He proved the post mortem report Ex.P/9. Injuries no.6 and 10 were grievous in nature and rest were simple in nature but as already stated that PW3 Dr.MP Joshi opined that the injuries no.6 and 10 were sufficient to cause death in ordinary course, therefore, it is proved that the victim died because of the injuries inflicted by the accused and that too on the vital parts of the body of the victim. The appellant inflicted injuries which clearly indicate towards his intention of seeing the victim to be eliminated totally. The injuries were anti-mortem. (7) SO far as the plea of the appellant that he was/is entitled to the benefit under Section 84 IPC is concerned, firstly it appears that the plea is only after thought and the appellant wants to take benefit of the statements given by the witnesses who are his own children of the age of 18, 15 and 10 years respectively who stated that the appellant was admitted in the mental hospital at Shastri Nagar about 3-4 years ago. At the same time, PW1 SOnu, complainant, denied the suggestion that his father used to behave like insane person and it is also proved that PW2 Raju, son of the appellant, who was of the age of 15 years, in cross examination stated that his father was admitted in the mental hospital but 3-4 years ago and his father used to behave like insane person but he denied the suggestion that his father used to beat his mother because of that insanity. PW4 Asu, who was of the age of 10 years, also stated that her father was admitted in mental hospital at Shastri Nagar. Thus, the statements of all these witnesses merely says that the appellant was admitted in the mental hospital at one point of time but without any proof of ailment for which he was admitted in hospital. The statement of these witnesses is not sufficient proof to hold that the appellant was insane at the time of commission of offence. The witnesses only stated that he was admitted in the mental hospital but what was the cause and what was the extent of ailment of the appellant has not come on record even for the purpose of holding that the appellant was insane at one point of time. The witnesses only stated that he was admitted in the mental hospital but what was the cause and what was the extent of ailment of the appellant has not come on record even for the purpose of holding that the appellant was insane at one point of time. Mere taking treatment in the mental hospital itself is not sufficient proof of total insanity of person. Witness PW5 Om Prakash is neighbour of the appellant and, therefore, he also could have knowledge about the mental state of the appellant but no question was put to him about the alleged insanity of the appellant. PW9 Daulat Ram also stated that the appellant used to quarrel with his wife, victim, and when a question was put to said PW9 Daulat Ram in cross examination that the appellant was insane, then it was denied by said PW9 Daulat Ram. Be it as it may be, there is no evidence that the appellant was insane at the time of commission of offence or even before that. The trial court, therefore, rightly took help of further corroborative fact situation that the appellant gave appropriate answers in reply to the questions put to him under Section 313 Cr.P.C. Which was the fact situation of the appellant at subsequent stage but during the trial. The appellant, therefore, failed to prove that he is entitled to the benefit under Section 84 IPC. (8) IN the totality of facts and circumstances of the case, the trial court was fully justified in holding the appellant guilty for committing of the offences referred above and sentencing him accordingly. So far as sentences awarded to the appellant are concerned, as referred above, the sentences are also just and proper in the facts and circumstances of the case. IN view of the above, there is no merit in this appeal and the same is hereby dismissed.