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2016 DIGILAW 444 (ORI)

State v. Ananta Murmu

2016-06-22

B.K.NAYAK, BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. 1. This appeal arises out of an order of acquittal dated 4.5.1999 passed by the Sessions Judge, Dhenkanal-Angul at Dhenkanal acquitting the respondent from the charge under Section 302 of the Indian Penal Code. 2. Prosecution led the story that on 21.4.1996 at about 3 P.M. while the son of the accused was counting money, the accused demanded for immediate handing over the money to him failing which accused threatened to kill his son. Son of the accused being afraid of the same ran away from the place and it is alleged that after the above, the accused chased his daughter, namely, Salma and assaulted her by means of a spade inflicting several blows resulting death of his daughter Salma in the backyard near the fence. Prosecution has the further story that at the above point of time, wife of the accused, namely, Basanti, who had been to fetch water, on her arrival protested the drastic act of the husband. Unfortunately, the husband then chased his wife Basanti and killed her by use of same spade. Prosecution story further reveals that for the ghastly act of the accused-respondent people from the neighborhood fled away from their houses and gathered at the end of the village. When the informant, who is the immediate neighbor of the accused, returned to village he was told about the incident by the villagers as well as his mother, who were all then assembled at the end of the village. Where after the informant rushed to the house and found the dead body of Salma lying near their common fence. As per informant, he also heard the shoutings raised by the accused being present inside the house. The informant along with two other villagers proceeded to Kamakhyanagar Police Station and reported the incident, which was reduced in to writing by the Officer-In-Charge, Kamakhyanagar Police Station on 21.4.1996 at about 8 P.M. Upon completion of investigation, the police submitted charge sheet against the accused-respondent under Section 302 of the Indian Penal Code facing the trial. 3. The plea of the accused is a complete denial. 3. The plea of the accused is a complete denial. The accused took his defence on his examination under Section 313 of the Code of Criminal Procedure that he was not only innocent but had no idea regarding the alleged incident and he was not even in a position to say as to who is the author of the crime and who are responsible for killing his wife and daughter. The accused had also disclosed in the said statement that two months preceding to the date of occurrence he was suffering from fever. 4. To prove the charge, prosecution examined as many as six witnesses. P.W.1 is the informant and is a post occurrence witness. P.W. 2 is the son of the accused claiming to be an eye witness to the occurrence. P.W.3 claimed to be a witness to the occurrence. P.W.4 is the old mother of the informant and the immediate neighbour of the accused also claiming to be an eye witness to the occurrence. P.W.5 is the witness to the seizure of blood stained earth from the spot and the blood stained wearing apparels of the accused. P.W.6 is the Officer-In-Charge of Kamakhyanagar Police Station at the relevant point of time and investigated into the matter. On the other hand, defence examined none. Basing on the prosecution story, depending on the evidence of P.W.2 disclosing that the accused was semi-mad and was howling on the date of occurrence further applying the provisions under Section 84 of the Indian Penal Code, particularly, the general exception in Chapter-IV of the Indian Penal Code, the Sessions trial was concluded with an order of acquittal, thereby further directing setting the accused to liberty forthwith. 5. Challenging the aforesaid judgment, the State filed the Government Appeal which was admitted by this Court vide its order dated 24.11.2003. 6. Challenging the judgment of acquittal, Sri Soubhagya Ketan Nayak, learned Additional Government Advocate urged that prosecution had a strong case against the accused-respondent. Prosecution established its case against the accused with sufficient evidence resulting a clear finding by the trial court in paragraph-15 to the effect that the murder was committed by the accused in sudden mood but with a wrong note of insanity. Prosecution established its case against the accused with sufficient evidence resulting a clear finding by the trial court in paragraph-15 to the effect that the murder was committed by the accused in sudden mood but with a wrong note of insanity. Challenging the application of Section 84 of the Indian Penal Code in acquitting the accused, learned Additional Government Advocate contended that even though there was a stray plea through some of the prosecution witnesses that the accused was suffering from mental disorder, the defence has miserably failed to establish the plea of insanity with the accused at the relevant point of time so as to attract the provision of Section 84 of the Indian Penal Code. Learned Additional Government Advocate also contended that the trial court has also misapplied the decision relied on by him in the judgment in applying Section 84 of the Indian Penal Code and lastly contended that in view of totality of the evidence available on record, the case at hand does not fall within the ambit of Section 84 of the Indian Penal Code and, therefore, prayed for conviction of the accused-respondent on reversal of the judgment of acquittal. Learned Additional Government Advocate also placed reliance on a decision reported in the case of S.W. Mohammed v. State of Maharashtra, AIR 1972 SC 2443 in support of his case and contended that the case does not fall within the ambit of Section 84 of the Indian Penal Code and the trial warranted conviction. 7. On a close scrutiny of the impugned judgment, this Court finds that the trial court relying on the evidence of P.W.2 after observing that the evidence of this witnesses should not be discarded in toto and further relying a decision of this Court in the case of Shama Tudu v. State, 1986 (1) OLR 536 deciding the principle governing the application of Section 84 of the Indian Penal Code and drawing an analogy between the words ‘medical insanity’ and ‘legal insanity’ and partial reliance of some of the evidence of P.W.1, the informant, observed that the prosecution witness supports the case of the defence regarding madness the accused had at the relevant point of time. Taking resort to the provision contained in Section 84 of the Indian Penal Code and in further reliance of the decision of this Court reported in (1993) 6 O.C.R. 41, the case between Ajaya Mahakud v. State, gave the benefit of Section 84 of the Indian Penal Code to the accused-respondent and consequently passed the judgment and the order of acquittal. Looking to the prosecution case including the evidence in the side of the prosecution and the observation of the Sessions Court, this Court finds that there is a clear observation of Section 84 of the Indian Penal Code in committing the double murder. In absence of challenge to the said, this Court is now required to see whether the application of Section 84 of the Indian Penal Code to the present case is justified or not. In the process, this Court now looks first of all the F.I.R. story vide Ext.7. The F.I.R. story remains wholly silent on the claim of insanity with the accused-respondent. From recording of the statement of accused under Section 313 of the Code of Criminal Procedure, the accused while claiming that he is innocent, he has a clear statement that he had absolutely no idea regarding the alleged incident and he also cannot say as to who is the author of the crime, further that he was suffering from fever from two months preceding to the date of occurrence. P.W.1, the informant in cross-examination on the issue of madness of the accused stated as follows: “The accused was semi-mad by the date of occurrence. I cannot say as to if the accused was complete mad at that time”. 8. P.W.2, the sole eye witness, is the son of the accused-respondent and he was 13 years of age at the time of incident and has been examined as a child witness. In his examination in chief, this witness stated as follows: “On the date of occurrence the accused was mad for which my mother asked me to bring out money for his treatment.” In cross-examination, P.W.2 stated as follows: “My father was complete mad by the date of occurrence. He used to throw away his wearing apparels and most of the times was remaining naked. He was unable to distinguish good from bad. He was not sleeping at all and roaming hither and thither aimlessly and sometimes howling unnecessarily.” 9. He used to throw away his wearing apparels and most of the times was remaining naked. He was unable to distinguish good from bad. He was not sleeping at all and roaming hither and thither aimlessly and sometimes howling unnecessarily.” 9. Prayer of the Public Prosecutor to recall this witness and declare him hostile was allowed. In further cross-examination by prosecution with the permission of the court below in paragraph-6, this witness admitted that he had not disclosed before the Police that his father was mad and that he was moving hither and thither naked and that he was unable to distinguish true from falsehood with a further disclosure that he did not say that as the police did not ask him any such question. His deposition further reveals a specific statement that before arrest of his father and putting him in jail, his father was earning and giving money to this witness, the son, to prosecute his studies. In the cross-examination by the accused, this witness in paragraph-7 stated that the madness developed with his father intermittently once or twice a year and when madness developed with him, he used to remain idle without taking up any work and at the end he also deposed that his father and mother used to tend their goats and sheeps. P.W.6, the Officer-In-Charge, who investigated the matter, in his cross examination at paragraph-6 while deposing that when he visited the spot being informed about the incident, he found the accused sitting near the dead body of his wife. At the same time he also deposed that he had never suspected the symptoms of insanity with the accused prior to the occurrence. Now coming to consider the aspect of Section 84 of the Indian Penal Code. Section 84 of I.P.C. reads as follows:- “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 requirement of this provision is that insanity or un-soundness of mind must be available with the person doing the act at the time of the occurrence. The term ‘insanity’ is not defined in the Indian Penal Code. The term ‘insanity’ is not defined in the Indian Penal Code. Section 105 of the Indian Evidence Act reads as follows: “Burden of proving that case of accused comes within exceptions. existence of circumstances bringing the case within any f the General Exceptions in the Indian Penal Code, (45 of 1860) or within any special exception or provision contained in any other part of the same Code, or in any law defining the offence, is upon him, and he Court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.” 10. Reading of both the above legal provisions makes it clear that legal insanity as distinguished from medical insanity envisaged and covered by Section 84 IPC is narrower and is applicable only if the person accused was incapable of knowing the nature of the act or knowing that what he was doing was either wrong or contrary to law and that too at the time of incident and not otherwise. In the case of Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97 , it clarified that to establish insanity under Section 84 IPC, it has to be established that the accused was laboring under such disability, i.e. unsoundness of mind, as not to know the nature or quality of the act he was committing or the act was wrong/contrary to law. Further, the crucial time for ascertaining insanity is the time when crime was committed i.e. the time when the incident has occurred and more, particularly, unsoundness of mind after or before commission of the offence is not relevant. This is also the view of the Hon’ble Apex Court in the cases of State of Madhya Pradesh v. Ahmadulla, AIR 1961 SC 998 . Dahyabhai Chhaganbhai Thakker v. State of Gujarat AIR 1964 SC 1563 and S.W. Mohammed v. State of Maharashtra, AIR 1972 SC 2443 where it has been clearly observed that it is common knowledge that every man is presumed to be sane, till contrary is established. Plea of unsoundness of mind of the type stipulated in Section 84 IPC is an exception. Plea of unsoundness of mind of the type stipulated in Section 84 IPC is an exception. Illustration (a) to Section 105 of the Evidence Act, 1872 casts burden on the accused to show the exception carved out under Section 84 IPC and the burden is on the accused to prove insanity at the time when the offence was committed. 11. From the discussions in the aforesaid paragraphs, this Court has considered the defence plea of insanity of the accused and the reading of the factual evidence available on record did not at all establish the defence of insanity of the accused at the time when the offence was committed. Section 84 IPC has no mere application to the case claiming insanity. Such claim has to be established with preponderance of probability. There is no establishment of this claim either conclusively or beyond reasonable doubt to get the benefit of Section 84 IPC. Therefore, this Court is of the firm view that the defence has totally failed in establishing the plea of insanity of the accused. Thus, this Court finds that the observation of the Sessions court in the matter of application of Section 84 IPC in the present case is improper and defective. 12. This Court has gone through the decisions relied on by the Sessions Judge as reported in the case of S.W. Mohammed v. State of Maharashtra, AIR 1972 SC 2443 . Reading of the aforesaid decision, this Court also observes that there has been improper application of the principle laid down therein by the Sessions Court and under the circumstances, this Court sets aside the impugned order of acquittal dated 4.5.1999 passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. Case No. 71-D of 1996 and find the accused-respondent guilty of the offence of murder and accordingly convict him under Section 302, IPC. 13. Now, coming to the question of sentence, this Court finds that the Sessions court has given a clear finding that the prosecution succeeded in proving that the murder of the wife and daughter has been committed by none else than the accused-respondent. There is some evidence that the incident had occurred involving family quarrel, though the testimony is silent as to who initiated quarrel and for what reason. There is some evidence that the incident had occurred involving family quarrel, though the testimony is silent as to who initiated quarrel and for what reason. However, looking to the materials available on record, particularly the background and the manner in which the crime has taken place, it is not possible to bring this case within the frame of a murder rarest among the rare. Consequently, this Court sentences the accused to undergo rigorous imprisonment for life and also with a fine of Rs.2,000/- (Rupees two thousand), in default of which the accused-respondent has to undergo rigorous imprisonment for two months. 14. The bail of the respondent stands cancelled and he is directed to surrender to custody forthwith to serve the sentence. Send back the L.C.R. forthwith.