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2013 DIGILAW 167 (PAT)

Bhuali Mahto v. State of Bihar

2013-02-05

ADITYA KUMAR TRIVEDI, SHYAM KISHORE SHARMA

body2013
JUDGMENT (ORAL) Per A.K. Trivedi, J.- Sole appellant Bhuali Mahto who has been found guilty for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life vide judgment dated 16.07.1988 passed by IInd Additional Sessions Judge. 'Gopalganj in Sessions Trial No. 34 of 1986/2 of 1987 has preferred instant appeal. 2. Succinctly the case of the prosecution as is evident from Ext. 1. fardbeyan of Awadh Mahto (PW 2). recorded on 13.07.1985 at about 11.45 a.m. at his house lying at village Srinagar, P.S. Mirganj. District Gopalganj by PW 6 Tribhuwan Singh alleging, inter alia. is that on the same day at about 7.00 a.m. while his mother deceased Ratni Devi was engaged in brushing her teeth, he was lying on a cot in the Palani. His uncle Bhuali Mahto, who resides in joint-ness with him and his mother, tried to drag her towards the southern palani which was resisted by his mother. His uncle Bhuali Mahto took spade which was kept near the Guava plant standing in his aangan and gave a blow over her head, on account of which she fell down. He rushed and caught hold the• spade. His uncle got it free and then also inflicted upon him. Out of fear he became a silent spectator having his position in the corner. Another blow was again given by the aforesaid Bhauli Mahto over head of his mother causing injury on her head who subsequently died. On hue and cry, his neighbour Jawahar Mahto had arrived at his darwaza and witnessed the occurrence. Seeing Jawahar Mahto, his uncle unsuccessfully attempted to flee but was apprehended by the villagers and handed over to the police. He had also disclosed that the spade-weapon of assault, was lying in the aangan. He had further asserted that he also sustained injury during course thereof. Accordingly, he narrated that his uncle had dragged his mother with some bad intention and became furious on account of her refusal leading to murder at his end. 3. He had also disclosed that the spade-weapon of assault, was lying in the aangan. He had further asserted that he also sustained injury during course thereof. Accordingly, he narrated that his uncle had dragged his mother with some bad intention and became furious on account of her refusal leading to murder at his end. 3. On the basis of aforesaid fardbeyan Mirganj P.S. Case No. 105 of 1985 was registered whereupon investigation commenced and after concluding the same, charge-sheet was submitted under Sections 302 and 354 of the Indian Penal Code against the appellant whereupon after taking cognizance the case was committed to the Court of Session where trial commenced and concluded in the manner which is subject matter of instant appeal. 4. The defence case as is-evident from the mode of cross-examination as well as statement recorded under Section 313 of the Code of Criminal Procedure is of innocence as well as that of complete denial of his involvement in the offence. Although the defence had not taken plea in specific term but the mode of cross-examination suggests that a plea of insanity was also there. 5. While assailing the judgment of conviction and sentence rendered by the learned trial Court, it has been submitted on behalf of learned lawyer for the appellant that there happens to be an erroneous approach taken up by learned trial Court while appreciating the evidences available on record. Further elaborating on this very score it has been argued that there happens to be deflection on the part of the prosecution from very initial version whatever has been narrated in the fardbeyan of PW 2. During examination before the Court, which happens to be the substantive evidence. PW 2 has not alleged against the accused/appellant that he had caught hold the deceased with lecherous intention. In the likewise manner, it has also been submitted that in the fardbeyan the informant had narrated repeated spade blow allegedly given by the appellant over the person of the deceased while during course of his evidence he had confined it to the extent of a specific single blow. At this juncture, referring the medical evidence it has also been submitted that apart from other injury sustained by the deceased, three injuries caused by sharp cutting weapon have been found over the deceased which rules out the manner as well as the genesis of occurrence. 6. At this juncture, referring the medical evidence it has also been submitted that apart from other injury sustained by the deceased, three injuries caused by sharp cutting weapon have been found over the deceased which rules out the manner as well as the genesis of occurrence. 6. It has further been submitted that save and except PW 2, none are the eyewitnesses to the occurrence. Having infirmity present in the evidence of PW 2 and further having inconsistency with the medical evidence which, in the facts and circumstances of the case. amount to give U turn to the prosecution, no reliance could be placed over the evidence of PW 2 and so it could safely be infirred that he is also not a eye-witness of the occurrence. 7. It has further been submitted that the objective finding of the Investigating Officer is also not going to give any rescue because of the fact that neither the seized spade nor the blood stained earth alleged to have scraped from the place of occurrence, were sent for chemical examination and in absence thereof it could not be said that they contained the human blood. 8. Last but not least. it has also been submitted that the learned trial Court had misconstrued the theory of burden of proof attracting the application of Section 105 of the Evidence Act against him because of the fact that it was the prosecution witness who himself during course of cross-examination divulged with regard to mental condition of the appellant. Therefore, from the cumulative effect of the deficiencies and infirmities persisting on record the finding recorded by the trial Court cannot be said to be supportive of the case. 9. Per contra, it has been submitted on behalf of the learned Addl. P.P. that after perusal of the judgment of the learned trial Court, it is evident that the learned trial Court had followed and scrutinized the evidence in its right perspective as well as also considered the application of relevant sections where under the accused is found to be under obligation to prove the fact of insanity. The appellant had failed to substantiate its plea of insanity to that extent when the Court would have formed an opinion with regard to insanity of the appellant at the time of commission of the occurrence, in such way that he was not in a position to understand its ailment. The appellant had failed to substantiate its plea of insanity to that extent when the Court would have formed an opinion with regard to insanity of the appellant at the time of commission of the occurrence, in such way that he was not in a position to understand its ailment. It has further been submitted that PW 2 even on being cross-examined at length has shown his status that of star witness having supported with other corroborative evidence having on the record. Thus the finding recorded by the learned trial Court did not attract any sort of illegality. 10. In order to substantiate its case, the prosecution had examined altogether seven PWs out of whom. PW 1 is Jawahar Mahto. PW 2 is Ram Awadh Mahto. PW 3 is Bishwanath Baitha. PW 4 is Lalji Sah. PW 5 is Ram Naresh Sah. PW 6 is Tribhuwan Singh and PW 7 is Dr. Janki Prasad. Side by side, it also exhibited fardbeyan as Ext. 1, Formal F.I.R. as Ext. 2, Inquest report as Ext.3, seizure-list as Ext.4 and Post mortem report as Ext.5 : 11. So far as the status of the witnesses is concerned, PW 2 happens to be the informant as well as the sheet anchor of the prosecution case being an eye-witness of the occurrence. PW 1 Jawahar Mahto, according to the fardbeyan, stood as an eye-witness of the occurrence while PW 3 Bishwanath Baitha and PW 5 Ram Naresh Sah (tendered) are the fardbeyan attesting witnesses. However, their status happen to be that of hearsay witnesses to the extent of corroborating the prosecution version. In the same manner, PW 4 Lalji Sah stood. PW 6 is the Investigating Officer and PW 7 is the doctor who held post-mortem over the dead body bf the deceased Ratni Devi. Neither any defence witness had been examined nor any document has been exhibited. 12. Now coming to the evidence of P.Ws: PW 1 had disclosed that when he reached at the darwaza of Bhuali Mahto then he saw Bhuali Mahto having spade in his hand. The mother of Ram Awadh Mahto was lying dead in her Angan. There was oozing injury over her head. He had also shown the presence of Ram Awadh Mahto in the Angan. He has further disclosed that he had no talk with Ram Awadh Mahto. The mother of Ram Awadh Mahto was lying dead in her Angan. There was oozing injury over her head. He had also shown the presence of Ram Awadh Mahto in the Angan. He has further disclosed that he had no talk with Ram Awadh Mahto. Then he disclosed that Bhuali Mahto ran from there after leaving spade who was apprehended with the help of the villagers. More or less PW 3 and PW 4 deposed like so. 13. Now coming to the evidence of PW 2, it is evident that he detailed the occurrence stating that while his mother was brushing her mouth, Bhuali went near her and dragged towards palani which was resisted by her and on account thereof, Bhuali Mahto gave a spade blow over her head after taking it from near the guava plant. He also caught hold Bhuali but he succeeded in his release and had also given blow over his head. On his alarm, the villagers came, caught, hold Bhuali who was handed over to police on their arrival. He further disclosed that his mother succumbed to her injuries in the aangan itself. On arrival of Police at his place, he had given his fardbeyan. 14. The doctor PW 7 has found the following ante-mortem injuries over the person of the deceased :- (i) Incised wound 3-1/2"/2 x 3/4"x deep to bone on the posterior part of left parietal bone. (ii) Incised wound 2" x 3/4" x deep to bone under right side of face on the mandibular portion. (iii) Incised wound 2-1/2" x 3/4" x 2" on the right side of neck. (iv) Abrasion 1"xl /2" on the right wrist. (v) Abrasion 1/2" x 1/2" on the right side of chest. That means to say that there happens to be presence of three incised injuries over the person of the deceased apart from two abrasion. 15. In the fardbeyan, the informant PW 2 had categorically stated in definite term that appellant had given two successive spade blow over head of the deceased. So far as second blow is concerned, he had categorically stated that it was from an edge side while first blow is concerned he kept mum. However, in course of his evidence, he has confined himself to single blow without disclosing whether it was from an edge side. So far as second blow is concerned, he had categorically stated that it was from an edge side while first blow is concerned he kept mum. However, in course of his evidence, he has confined himself to single blow without disclosing whether it was from an edge side. Apart from inconsistency in between the fardbeyan as well the evidence of PW 2, his status as an eye-witness has become doubtful in the light of presence of three sharp cutting injuries over the deceased. Further having non-explanation at the end of the prosecution how three sharp cut injuries have been sustained by the deceased, now only put question mark over authenticity of evidence of PW 2 rather it also put mark of interrogation with regard to the genuine conduct of the prosecution at least relating to genesis as well as manner of occurrence. 16. After going through the cross-examination of prosecution witnesses, more particularly, PW 1 paragraph 9, PW 2 paragraph 10 and PW 3 paragraph 8, it is evident that there happens to be an admission on their score to the effect that about a month or earlier than that the appellant became insane which was continuing even on the alleged date of occurrence. Its relevancy has become of more concern in the light of admission made by the informant himself who is none else rather than own nephew of appellant. The aforesaid thing should also be looked into in the background of the fact that in paragraph 4 of the cross-examination, PW 2 had categorically admitted that the appellant had not caught hold hand of his mother before the alleged date. Learned lower Court had dealt with the aforesaid issue separately and in dealing thereof had taken note of Section 84 of the Indian Penal Code along with Section 105 of the Evidence Act where under obligation has been cast upon the shoulder of the accused to substantiate his plea of insanity and as, in the opinion of the learned trial Court, the accused/appellant failed to produce the aforesaid material hence the same has gone out of consideration. Where, on a criminal charge, it appears that at the time of the act or omission giving rise to the offence alleged the defendant was labouring under a defect of reason owing to a disease of the mind, so as to know the nature and quality of his act or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for his act. The question whether owing to defect of reason due to disease of mind of the defendant was not responsible for his act is a question of fact to be determined by the Jury. Where the Jury finds insanity is made out the verdict takes the special form of not guilty by reason of insanity. (Halsbury's Laws of England 4th Edition Vol. 11 page 27 para 30). That means to say that the Courts are expected to scrutinized the evidence available on the record to trace out whether there happens to be plea of insanity and in case there happens to be, whether it has been substantiated. True it is that the plea of insanity falling under category of general exception is to be pleaded and supported in terms of Section 105 of the Evidence Act but that does not happen to be the sole criteria for proving the plea because of the fact that the plea of defence is based upon the theory of preponderance and that can be proved either by leading evidence or by relying upon prosecution evidence itself. 17. Now coming to the facts of the present case, true it is that neither in definite term plea of insanity has been taken up nor the appellant had responded in terms of Section 105 of the Evidence Act. Simultaneously, it should not be over sighted that there happens to be own admission on the part of the prosecution witnesses with regard to mental condition of the appellant not only on the date of occurrence rather having under influence of insanity much earlier than that and the evidence of the informant PW 2 appears to be more detailed and elaborate. 18. As such, the plea of insanity negativated by the learned trial Court overthrowing own admission of the prosecution witnesses happens to be unjust and consequent thereupon we feel constraint to reverse its finding recorded by the learned trial Court. 18. As such, the plea of insanity negativated by the learned trial Court overthrowing own admission of the prosecution witnesses happens to be unjust and consequent thereupon we feel constraint to reverse its finding recorded by the learned trial Court. Consequent thereupon, the judgment of conviction and sentence is set aside. The appeal is allowed. The appellant is on bail. Hence he is directed to be discharged from the liability of the bail bond. 19. It will be unfair on our part if we do not appreciate the assistance rendered by Sri Anjani Kumar Jha, learned amicus curiae appearing for the appellant. 20. Let copy of first page and last page of this judgment be given to Mr. Anjani Kumar Jha, Advocate so that he may get his prescribed fee from High Court Legal Services Committee, Patna. Appeal allowed.