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2013 DIGILAW 490 (MP)

Thavriya @ Thavar Singh v. State Of M. P.

2013-04-09

J.K.MAHESHWARI, S.K.SETH

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JUDGMENT : J. K. MAHESHWARI, J. Being aggrieved by the judgment dated 25-7-2005, passed by 2nd Additional Sessions Judge (Fast Track) Jhabua, in Sessions Trial No. 356/2004, convicting the appellant for the offence under section 302, Indian Penal Code directing to undergo life imprisonment with default stipulation and for the charge under section 352, Indian Penal Code directing one month's R.I., this appeal has been filed under section 374 of Criminal Procedure Code. 2. As per the prosecution story on 24-8-2004 Noora, wife of the appellant was admitted in Government Hospital, Thandla due to labour pain, where she gave birth to male child. She is also having a female child, aged 3 years. On the next date i.e. 25-8-2004 nurse Elizabeth Rawat (PW-2) has intimated to the Dr. Kiranbala Chaturvedi (PW-1) at 6:15 a.m. that appellant creating violence and dancing with his daughter (sic : son) keeping in his hand and thereafter, thrown her (sic : him) on bed. When the nurse went to save him the accused taking infant male child in hands inflicted knife injury over the stomach. On intimation doctor came to the hospital and tried to remove the accused, who was shouting, thereupon accused also assaulted her. A written intimation was given to the Police Station Thandla and the medical assistance to the child was offered thereupon an offence at Crime No. 160/2004 at Police Station Thandla under section 307, Indian Penal Code was registered. The infant during treatment succumbed to the injuries, however, section 302, Indian Penal Code was further added. 3. After committal by the Judicial Magistrate First Class, Thandla the case was assigned to the Sessions Court, Jhabua where the charges under section 302 and 352, Indian Penal Code were framed. Accused has abjured his guilt and took defence that under influence of some extraneous power he was dancing and jumping, at that time the incident has taken place. During course of trial the defence of unsoundness of mind of the accused was put-forth but it was not believed by the trial Court while recording satisfaction as specified under section 328, Criminal Procedure Code. The prosecution has examined as many as 13 witnesses while the appellant has not examined any witness in defence. The trial Court believing the testimony of Elizabeth Rawat (PW-2), Dr. Kiranbala Chaturvedi (PW-1) and the autopsy report (Ex. P-12) supported by the testimony of Dr. The prosecution has examined as many as 13 witnesses while the appellant has not examined any witness in defence. The trial Court believing the testimony of Elizabeth Rawat (PW-2), Dr. Kiranbala Chaturvedi (PW-1) and the autopsy report (Ex. P-12) supported by the testimony of Dr. Ashok Mabajan (PW-12) found the prosecution story proved, however, convicted the appellant for the said charges and directed to undergo sentence as specified herein above. 4. The facts in the present case which are not in dispute are that on 24-8-2004 Noora wife of accused was admitted in Government Hospital, Thandla at 11:00 a.m. in the morning due to labour pain where a male child was born at 11:50 a.m. She is also having a female child, aged three years. It is also not in dispute that on 25-8-2004 Elizabeth Rawat (PW-2) was posted on night duty in the Hospital and Dr. Kiranbala Chaturvedi (PW-1) was the doctor posted in the Government Hospital, Thandla. The infant received knife injury over the stomach, due to said injury he has developed septicemia and succumbed to those injuries. 5. Learned counsel Shri Vivek Singh appearing on behalf of the appellant has strenuously urged that as per the statement of the prosecution witness Elizabeth Rawat (PW-2) and Dr. Kiranbala Chaturvedi (PW-1) it is clear that at the time of incident accused was not of a fit mental state of mind, however, was of unsoundness of mind. It is his contention chat he was incapable of knowing the nature of the act which he was doing is wrong or contrary to law. In such circumstances he ought to be acquitted accepting the said defence. It is also his contention that there was no motive to the accused to commit culpable homicide amounting to murder. Looking to the fact that the injury by knife has been inflicted all of a sudden without any motive and the incident is all of sudden, therefore, it may hardly be a case of section 304 Part-II, Indian Penal Code. It is also submitted by him that on causing injury the infant was died after three weeks due to septicemia, therefore, the charge under section 302, Indian Penal Code has not brought at home by the prosecution in the facts of the case. It is also submitted by him that on causing injury the infant was died after three weeks due to septicemia, therefore, the charge under section 302, Indian Penal Code has not brought at home by the prosecution in the facts of the case. So far as the charge under section 352, Indian Penal Code is concerned it is submitted that the sentence has already been undergone, therefore, by allowing this appeal sentence may be reduced for the charge under section 302, Indian Penal Code setting aside the finding and the judgment of the trial Court. 6. Shri Raghavendra Singh Bais, learned Deputy Government Advocate representing the State referring the statement of the prosecution witnesses and also relying upon the autopsy report and the statement of the doctor performing the autopsy (Ex. P-12) urged that the injury has been inflicted by knife by the accused himself to an infant of about 20 hours old. By the said injury the intestine of the said infant has come out and during treatment septicemia was developed thereby he has died, therefore, the cause of death is septicemia developed on account of the injury inflicted by the accused, however, the trial Court has rightly convicted the appellant and directed the sentence, thus, interference in this appeal is not warranted. 7. After hearing learned counsel appearing for the parties at length, first of all the defence of unsoundness of mind put-forth by the accused requires consideration. In this aspect it is relevant to note here that the accused has moved an application before the trial Court under section 84, Indian Penal Code, which was rejected on 24-12-2004. Learned trial Court has put various questions to the accused, which has been answered satisfactorily by him. The trial Court was satisfied that the accused is not of unsound mind. In the said order it was observed that he is capable of understanding the questions and to answer it. It has further been observed that he understand that the act done by him is wrong. In such circumstances after satisfaction the defence put by accused under section 84 of Indian Penal Code was denied. After passing the order by the trial Court steps were not taken to prefer the appeal before the Medical Board or to file a revision assailing the said order, however, it has become absolute. In such circumstances after satisfaction the defence put by accused under section 84 of Indian Penal Code was denied. After passing the order by the trial Court steps were not taken to prefer the appeal before the Medical Board or to file a revision assailing the said order, however, it has become absolute. In the said context, on the plea of insanity the guidance can safely be taken by the Division Bench Judgment of this Court in the case of Bhagirath vs. State, Criminal Appeal No. 1004 of 2002 decided on 30-11-2012, the Court has observed as under "11. The law on the subject of insanity is very clear. Section 84, Indian Penal Code deals with legal insanity as a general exception to an offence punishable under the Penal Code or under any special or penal law. This section lays down the legal test of responsibility in cases of alleged unsoundness of mind. Under it, a person is not guilty of an offence, who at the time of doing such act 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. This is known as Mc'Naghten's Rule. The burden of proving insanity or non-compos mentis lies on the accused. It is for him to establish that his cognitive facilities were lost due to aberration of mind. In other words, defence of unsoundness of mind being one of the general exceptions to criminal liability, the prosecution having established the main ingredients of the offence the burden to prove insanity at the time of occurrence is on the defense. Everyone is presumed to know the nature or consequence of his act. The accused may rebut this presumption with cogent and reliable evidence about his insanity." 8. In view of the foregoing nothing has been brought on record to establish that the accused was of unsound mind at the time of incident. The defence of unsoundness of mind or incapable of knowing the nature of the act committed by him to be established by the accused otherwise the common man is presumed to know the nature of the consequence of the act done until rebutted by cogent defence. In such circumstances the argument on the said issue of the learned counsel for the appellant is hereby repelled. 9. In such circumstances the argument on the said issue of the learned counsel for the appellant is hereby repelled. 9. As per the prosecution story it is apparent that on 25-8-2004 at about 06:15 a.m. when the nurse Elizabeth Rawat (PW-2) was on night duty she visualized that accused keeping his daughter (sic : son) on his hand dancing and thrown him on bed. Thereafter caught hold the infant child and push on his chest. When she has tried to save him, he was having knife in his hand inflicted injury to infant son over the stomach thereby his intestine has come out. She has immediately rushed to call Dr. Kiranbala Chaturvedi (PW-1). The doctor came on spot, has also supported the version of Elizabeth Rawat (PW-2) and an intimation of the incident was given by her to the Police Station. With the help of Police and other persons the accused was caught hold and sent to the custody. The cause of death of the infant boy is due to injury received over his stomach by knife, and due to septicemia. The said fact is apparent from the autopsy report (Ex. P-12) and the statement of Dr. Ashok Mahajan (PW-12). The testimony of these witnesses has remained in ocular to inflict the injury by the accused to the infant deceased by knife. In such circumstances, the prosecution has proved the charge under section 302, Indian Penal Code beyond reasonable doubt by cogent evidence. Thus, the finding of conviction as recorded by the trial Court after due appreciation of the evidence which do not warrant any interference. 10. Now, the argument advanced by learned counsel for the appellant having no motive to cause death and looking to the injury it may not be a case of culpable homicide amounting to murder but it is a case under section 304-II of Indian Penal Code, requires consideration. In this respect, as per the evidence of the prosecution witnesses it is fully proved that the accused has come along with his wife Noora in the Hospital. In the evening he was seated on her bed and discussing on the next day morning he has created a scene and when he was stopped by the Hospital staff including Elizabeth Rawat (PW-2) and Dr. In the evening he was seated on her bed and discussing on the next day morning he has created a scene and when he was stopped by the Hospital staff including Elizabeth Rawat (PW-2) and Dr. Kiranbala Chaturvedi (PW-1) using a knife which he was having caused injury to his infant son, who cannot be in a position to assert. The aforesaid sequel of facts indicates that after creating the scene using a knife which he was having with him injury has been caused to the infant which ultimately resulted into death after developing septicemia during treatment. The infant, who was on the threshold at childhood and not known to the niceties of society received injury caused by his father and died in the said incident. In such circumstances it cannot be said that the offence under section 302, Indian Penal Code may be converted into section 304 Part-II, Indian Penal Code and the accused is having no motive. Considering the aforesaid and looking to the finding so recorded by the trial Court after due appreciation of the evidence we are of the opinion that the conviction of the appellant under section 302, Indian Penal Code has rightly been directed by the trial Court. 11. So far as the charge under section 352, Indian Penal Code is concerned the said charge has been fully established from the evidence of the Dr. Kiranbala Chaturvedi (PW-1) and the argument to disprove the said charge has not been made before this Court. In such circumstances, the charge under section 352, Indian Penal Code has rightly been found proved by the trial Court and the finding of fact so recorded do not warrant any interference in this appeal. 12. Accordingly, the appeal filed by the appellant is devoid of any substance, therefore, upholding the judgment of conviction and sentence so awarded by the trial Court this appeal stands dismissed. The appellant shal1 undergo the remaining sentence as directed by the Court.