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2016 DIGILAW 1141 (GAU)

SAIBUR RAHMAN BARBHUIYAN v. STATE OF ASSAM

2016-12-16

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. This appeal by Saibur Rahman Barbhuiyan is filed against the judgment dated 11.09.2013 passed by the learned Additional Sessions Judge, Cachar, Silchar in Sessions Case No. 155/2012, whereby the appellant was convicted under Sections 447/302 of the Indian Penal Code and sentenced to rigorous imprisonment for 3 (three) months under Section 447 IPC and to imprisonment for life under Section 302 IPC with fine and default stipulations. 2. The case on hand is in respect of the death of a woman Jamila Bibi in her house perpetrated by the appellant by inflicting injuries on the neck and forehead by a blunt weapon. The plea of insanity under Section 84 of the IPC was taken by the defence. The deceased woman was residing in the neighborhood of the appellant. 3. According to the prosecution case, on 16.02.2012 at around 10 A.M., the appellant trespassed into the house where the deceased was residing and in the absence of her husband Tasir Ali (PW-1) and with the intention to cause death, voluntarily caused hurt on the head and neck of Jamila Khatun by means of a handle of a Tara Pump. Jamila was taken to Banskandi PIC and then to Alipur Hospital. She was referred for treatment to Silchar Medical College & Hospital (SMCH) but she was declared as brought dead at SMCH. Ejahar in the case was lodged by one Afzal Hussain and thereupon Lakhipur P.S. Case No. 23/2012 was registered against the appellant under Sections 447/302 IPC. Investigation commenced, memos were drawn, statements of witnesses were recorded, autopsy conducted on Jamila and Charge Sheet was filed committing the case to trial. Formal charges were drawn up by the Court and trial commenced. 4. The homicidal death of Jamila as a result of injuries caused by a blunt weapon is not in dispute. To what extent the appellant was involved and in what manner and weapon was employed for causing death of Jamila has been brought to fore by the prosecution through Musstt. Sajola Begum (PW-2), Musstt. Nomina Begum (PW-5) and that of the evidence of Abdul Kayum Laskar (PW-4) and Abdul Basit (PW-9), in his capacity as the Investigating Officer. 5. In the testimony of Musstt. Sajola Begum (PW-2), on the date and time of the incident, she was in the house of Jamila, who is her aunt. Sajola Begum (PW-2), Musstt. Nomina Begum (PW-5) and that of the evidence of Abdul Kayum Laskar (PW-4) and Abdul Basit (PW-9), in his capacity as the Investigating Officer. 5. In the testimony of Musstt. Sajola Begum (PW-2), on the date and time of the incident, she was in the house of Jamila, who is her aunt. The appellant Saibur Rahman had come to the house of Jamila and on his asking she came out to the courtyard of the house. A discussion ensued between the appellant and Jamila and the appellant had a Tara Pump pipe in his hand, which was sharp on both sides. All of a sudden, the appellant dealt a blow on the head of Jamila from the front side with the iron pipe, whereupon Jamila fell down on the ground, followed by appellant dealing another blow at the throat of Jamila. PW-2 raised alarm and before she became unconscious at the sight of profuse bleeding, people started to gather at the place of occurrence. PW-2 also stated that upon arrival of Police, they had seized the Tara Pump pipe in her presence from the place of occurrence and that she had also put her signature in the Ext. 1 Seizure List. 6. Musstt. Nomina Begum (PW-5) corroborated the testimony of PW-2 and also presented herself as an eye-witness to the incident. In her testimony, she stated that she had seen appellant causing hurt to Jamila with the handle of a Tara Pump. She also deposed of having seen the appellant causing multiple injuries on Jamila, who is her sister-in-law, on the throat and backside of her head causing profuse bleeding. She also deposed that having witnessed the incident, she and PW-2 raised alarm. In cross, she also dis-agreed with the suggestion that the appellant was insane. As regards the vocation of the appellant, she stated that he is shopkeeper. The evidence of Abdul Kayum Laskar (PW-4) supports the case of the prosecution to the extent that on the date of the incident at about 9.30 A.M., when he was proceeding to Lakhipur market, he crossed the appellant and saw him entering the house of Jamila with a handle of a Tara Pump in his hand. According to the said PW-4, the appellant looked visibly angry. According to the said PW-4, the appellant looked visibly angry. He also stated that he had seen the appellant come out from Jamila's house hurriedly with the said weapon in his hand. In cross, he too stated that the appellant is not an insane person. The evidence of Abdul Basit (PW-9), who was in-charge of Banskandi PIC on the date of the incident, also gains significance. According to him, he had proceeded to the place of occurrence on the basis of the GD Entry and reaching there he found that the villagers had kept the appellant confined within his house-cum-shop. He apprehended the appellant and recovered the handle of Tara Pump from his custody. Necessary memos were drawn and signatures obtained from witnesses in support of the seizure of the weapon of offence. 7. Connection of the weapon of offence with the injuries sustained by Jamila, the same finds substantiated from the Post Mortem Report (Ext. 2), prepared by Dr. Gunajit Das (PW-3). In his deposition, PW-3 proved the Post Mortem Report and stated that Jamila had sustained three wounds on the head and neck. In his opinion, death was due to hemorrhage and shock following the injuries sustained by blunt weapon, which was ante-mortem and homicidal in nature. 8. The entire evidence on record was analysed, discussed and concluded by the trial Court, finding the appellant guilty of the offence. Before this Court also, the entire materials, primarily that of the evidence of PW-2 and PW-5 as eye-witnesses and that of the evidence of PW-4 and PW-9, duly corroborated by medical evidence, have received close scrutiny. The evidence on record clearly establishes that it was the appellant alone who had committed the murder of Jamila and to that extent, the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt. 9. One important aspect put forward on behalf of the appellant needs to be noticed and answered. In the proceedings before the trial Court and also in the present appeal, a contention is advanced that the appellant was suffering from paranoid schizophrenia. Reliance is placed on the evidence of Dr. Simanta Talukdar (DW-1) and Dr. Utpal Bora (DW-2), both being attached to the Department of Psychiatry at Silchar Medical College & Hospital. According to DW-1, the appellant was admitted at SMCH following the order of the trial Court on 25.08.2012. Reliance is placed on the evidence of Dr. Simanta Talukdar (DW-1) and Dr. Utpal Bora (DW-2), both being attached to the Department of Psychiatry at Silchar Medical College & Hospital. According to DW-1, the appellant was admitted at SMCH following the order of the trial Court on 25.08.2012. As none of the family members of the appellant had come forward to throw light on the history of the patient, as such, evaluation was made on their own. During evaluation the appellant had reported that since last 6/7 years he was hearing some voice which was not heard by others and that he used to become fearful of being harmed by others. DW-1 deposed that they had reached a conclusion that the appellant was a patient of paranoid schizophrenia and accordingly, he was treated and advised to undergo continuous treatment. He also deposed that at the time of discharge of the appellant from the hospital on 11.09.2012, there was a partial remission and when he had examined the appellant last on 12.08.2013 at the Central Jail, Silchar, he found the appellant fit. In cross, DW-1 stated that the appellant could not produce any medical documents regarding his illness anytime in the past. Also, although the appellant could give all the answers normally, some irrelevant behaviour was noticed. The testimony of Dr. Utpal Bora (DW-2) is in the same line as that of DW-1. He supports that during medical examination of the appellant at SMCH, he was diagnosed as a patient of paranoid schizophrenia. 10. Having regard to the depositions of DW-1 and DW-2 and the plea of insanity raised by the appellant seeking protection under Section 84 of the Indian Penal Code, it will now be useful to reproduce the provisions of the said Section 84 IPC. "84. Act of a person of unsound mind.- 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." The aforesaid provision makes it clear that insanity or unsoundness of mind belonged to the stages when a person is incapable of knowing the nature of the act or unable to understand what is right or wrong and that stage must relate to the period when the offence had been committed. In this respect, it will also be useful to refer to and reproduce the provisions under Section 105 of the Evidence Act, 1872, which reads as under : "105. Burden of proving that case of accused comes within exceptions. - When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." Ordinarily, the burden of proving an offence always lies on the prosecution and never shifts. However, the existence of circumstances for bringing a case within the exception of Section 84 IPC lies on the accused. 11. Facts brought on record do not demonstrate that at the time of commission of the offence, the appellant was of unsound mind or incapable of knowing the nature of the act, whether it was right or wrong. From the testimony of Abdul Kayum Laskar (PW-4), the appellant was proceeding towards the house of Jamila visibly angry with a handle of a Tara Pump in his hand. In the deposition of Musstt. Sajola Begum (PW-2), the appellant, on reaching the house of Jamila, had asked her to come out. The appellant made conversation with Jamila in the courtyard of the house and suddenly thereafter inflicted the fatal blows on Jamila. At first, the appellant dealt a blow with the iron pipe on the head of Jamila and when she fell down, he again dealt blow at the throat of Jamila. The testimony of Musstt. Nomina Begum (PW-5) corroborates the testimony of PW-2 and even in cross-examination she deposed that the appellant was not insane. She also stated that the appellant is a shopkeeper. The Investigating Officer (PW-9) stated that when he had reached the place of occurrence, he found the appellant confined within his house-cum-shop. Also, during the entire proceedings, the appellant has nowhere stated that he was insane during any period prior or on the date of the incident. She also stated that the appellant is a shopkeeper. The Investigating Officer (PW-9) stated that when he had reached the place of occurrence, he found the appellant confined within his house-cum-shop. Also, during the entire proceedings, the appellant has nowhere stated that he was insane during any period prior or on the date of the incident. A close scrutiny of the materials on record nowhere shows that he was suffering from unsoundness of mind and/or that his cognitive faculties had been so impaired that at the time and date of incident he was unaware of the nature of the act. Even from his statement under Section 313 Cr.P.C., insanity or unsoundness of mind is not demonstrated, not to speak of any mental defects that he may have suffered on the date and time of the incident. 12. The law relating to plea of insanity have received due consideration of the Apex Court with reference to Modi's Medical Jurisprudence and Toxicology. Reliance is placed in the case of Shrikant Anandrao Bhosale v. State of Maharashtra, reported in (2002) 7 SCC 748 ; Sudhakaran v. State of Kerala, reported in (2010) 10 SCC 582 and in the case of Mariappan v. State of Tamilnadu, reported in (2013) 12 SCC 270 . In the said cases it has been categorically held that although a person may be treated medically as a mentally sick person, however, for the purposes of claiming the benefit of the defence of insanity in law, he would have to prove that his cognitive faculties were so impaired at the time when the crime was committed, as not to know the nature of the act. The settled proposition of law as to the crucial point of time for ascertaining the existence of circumstances within the purview of Section 84 IPC has been consistently held as the time when the offence is committed. Also, it is well settled in law that when a person is bound to prove the existence of any fact, the burden of proof lies on that person. 13. In the instant case, the fact as to whether the appellant had suffered from paranoid schizophrenia during any period prior to and/or on date of the incident, there is no material or information on record that he was suffering from the same. 13. In the instant case, the fact as to whether the appellant had suffered from paranoid schizophrenia during any period prior to and/or on date of the incident, there is no material or information on record that he was suffering from the same. Nowhere in evidence it has been stated that the appellant is a mentally ill person and was not able to do his routine works properly. The manner in which the crime unfolded with active participation of the appellant and in the utter absence of evidence regarding impairment of cognitive faculties of the appellant at the crucial point of time, leaves no manner of doubt that the appellant was not insane. The benefit of Section 84 IPC cannot be extended to him. 14. In the light of the above discussion and in view of the materials available on records and also having regard to the settled propositions of law, we fully agree with the conclusion arrived at by the trial Court. The conviction and sentence of the appellant stands affirmed and the present appeal stands dismissed.