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2016 DIGILAW 532 (JHR)

Chamu Oraon v. State of Jharkhand

2016-03-29

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. Upadhyay, J. Heard the parties. 2. This criminal appeal has been preferred from Jail against the judgment of conviction and sentence dated 31.01.2006 passed by the Sessions Judge, Latehar in Sessions Trial No. 21/2005 corresponding to G.R. No. 266/2004 arising out of Latehar P.S. Case No. 67/2004 whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.1. for life and to pay fine of Rs. 2,000/-. He has further been sentenced to undergo R.1. for seven years under section 307 of the Indian Penal Code and to pay fine of Rs. 2,000/-, in default of payment of fine, he shall suffer S.I. for two months. All the sentences so passed were to run concurrently. 3. The facts emerging from the fardbayan of Dinesh Oraon, son of Udeshwar Oraon recorded on 02.08.2004 at 9:30 hrs. at Latehar Hospital is that on 02.08.2004 at about 6:00 a.m., while informant was returning home after answering call of nature, he heard alarm raised by his sister. He ran to the place and found that his uncle Chamu Oraon (appellant) has been causing injury to his mother by means of Tangi in the cow shed. Seeing the informant, the appellant went back home, the informant followed him and had seen the appellant causing injury to his wife and daughters namely Sibna Kumari, aged about two and half years and Ribna Kumari, aged about five years. The appellant killed his wife and two daughters by causing injury to them by means of Tangi. He had threatened the informant “if you would come, you would also be done to death.” The informant took his mother to Hospital for treatment. In the Hospital statement of informant was recorded and a case being Latehar P.S. Case No. 67/2004, dated 02.08.2004 under Section 307, 302, 324 of the Indian Penal Code against the appellant was registered. The police after due investigation submitted charge sheet and accordingly cognizance was taken and the case was committed to the Court of Sessions and registered as S.T. No. 21/2005. Charges under Section 302, 307 of the Indian Penal Code against the appellant were framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether 13 witnesses including informant, doctor and the investigating officer. Charges under Section 302, 307 of the Indian Penal Code against the appellant were framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether 13 witnesses including informant, doctor and the investigating officer. During investigation confession of the appellant was recorded by the police and he had admitted his guilt and that confessional statement has been marked Ext.-9. The appellant was also examined under section 164 Cr.P.C. in which too he has admitted his guilt and that confession recorded under section 164 Cr.P.C. has been proved as Ext. 10. The learned Sessions Judge, Latehar at the conclusion of trial placing reliance on the evidence, documents available on record and confessional statements of appellant, held him guilty for the offence punishable under Section 302 of the Indian Penal Code for causing murder of his wife and two daughters and further held him guilty for the offence punishable under Section 307 of the Indian Penal Code for causing injury to mother of the informant and inflicted sentence as indicated above. 4. Learned counsel Sri Ram Kishore Prasad appointed as amicus curiae, has challenged the impugned Judgment mainly on the ground that the appellant is entitled for the benefit provided under Section 84 of the Indian Penal Code. The appellant, in his confession recorded under section 164 Cr.P.C. has clearly stated that sometimes he becomes mentally derailed. On the date on which he had killed his wife and two daughters and caused injury to his sister-in-law (Bhabhi), his mental condition was not good and in that state of mind, the offence was committed. Whenever he suffers with mental disorder, he used to seek assistance from Ojha and Baidya. Sometimes they say that you are under influence of Ghost. Subbo Kumari (PW. 12) happens to be daughter of the appellant. She has supported the occurrence in her deposition in Court and said that her father had killed her mother and two sisters. Her father had caused injury to her aunt (Badi Maa), She was also chased by the appellant but she saved herself by hiding at a safe place. In her cross examination she has said that his father is not mentally fit. Learned counsel has submitted that prosecution has not discharged its obligation. Her father had caused injury to her aunt (Badi Maa), She was also chased by the appellant but she saved herself by hiding at a safe place. In her cross examination she has said that his father is not mentally fit. Learned counsel has submitted that prosecution has not discharged its obligation. If a fact that the appellant was suffering from mental disorder, the duty of the prosecution was to get him examined by a competent doctor to ascertain his mental condition. Learned counsel has relied on the Judgment delivered in the case of Ratan Lal Vs. The State of Madhya Pradesh reported in 1970 (3) SCC 533 . It was held therein :- “It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. The appellant has discharged the burden. There is no reason why the evidence of Shyam Lal, D.W. 1, and Than Singh, D.W.-2, should not be believed. It is true that they are relations of the appellant, but it is the relations who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning of Section 84 I.PC. At the time of the incident he was a person of unsound mind within the meaning of Section 84 of the Indian Penal Code.” Learned counsel has further placed reliance to the Judgment rendered in the case Kuttappan Vs. State of Kerala reported in the case of (1986)0 Cr.L.J. 271 and in the case of Surju Marandi and another Vs. State of Bihar reported in (1977)0 Cr.L.J. 1765 and submitted that offence was committed by the appellant while he was suffering from unsoundness of mind and this fact was brought to the knowledge of prosecution at the stage of investigation itself. In the confessional statement of the appellant recorded under section 164 Cr.P.C., this fact was brought to the notice of Court as well as to the notice of the investigating officer but the prosecution did not take effort to get the appellant examined by competent doctor. In the confessional statement of the appellant recorded under section 164 Cr.P.C., this fact was brought to the notice of Court as well as to the notice of the investigating officer but the prosecution did not take effort to get the appellant examined by competent doctor. By bringing aforesaid fact on record he has discharged his obligation. Now it was turn of the prosecution to discard or disprove that offence was not committed by the appellant in that state of mind and he is not entitle for the benefits of Section 84 of the Indian Penal Code. Besides the technical ground it is submitted that the informant, P.W.-3 Prameshwar Oraon, P.W.-7 Babloo Oraon, P.W.-9 Manbahal Oraon and PW. 10 Lalchand Uraon have also turned hostile and they have not supported the prosecution case. Udeshwar Oraon (P.W.-2) has supported prosecution case but he appears to be hearsay witness. In his cross examination he admits that he had not seen the assault caused to deceased and injured by the appellant. Manan Oraon (P.W.-4) and Fuldeo Oraon (P.W.-5) are the hearsay witnesses and they have said that Tangi was recovered from house of the appellant. Dr. Dilip Kumar (P.W.-6) had conducted postmortem examination on the dead body of the deceased Budhani Devi, Sibna Kumari and Ribna Kumari. Satyabir Singh (P.W.-8) is the investigating officer. He has proved the fardbayan as Ext.-4, endorsement made on the F.I.R., formal F.I.R. (Ext.-6), Seizure list of Tangi (Ext.-8), inquest report (Ext. 7 to 7/2) and confessional statement of appellant (Ext-9). Contradictions taken from mouth of hostile witnesses have been referred to the investigating officer. He admits that seized Tangi is not before him in Court. It is submitted that investigating officer and doctor are formal witnesses. The informant and other material witnesses have turned hostile. Conviction of the appellant has been recorded only on the statement of P.W.-12 who is daughter of the appellant and the confessional statement given by the appellant. It was again submitted that P.W. 12 has also stated in his cross examination that his father was mentally unfit. By referring Section 84 IPC, it was contended that nothing is an offence which is done by a person, who, at the time of doing it, by reason of unsoundness o mind, is incapable of knowing nature of the act, or that he is doing what is either wrong or contrary to law. By referring Section 84 IPC, it was contended that nothing is an offence which is done by a person, who, at the time of doing it, by reason of unsoundness o mind, is incapable of knowing nature of the act, or that he is doing what is either wrong or contrary to law. From the evidence available on record and statement o appellant before the Police and the Magistrate, it is clear that he was incapable of knowing nature of the act and he was suffering from mental disorder at the time when offence was committed. Under such circumstances the impugned Judgment of conviction is liable to be set aside and the appellant is entitle for the benefits contained under Section 84 of the Indian Penal Code. 5. Learned APP has opposed the argument and submitted that no previous incident prior to the occurrence has been brought on record that the appellant was suffering from mental disorder. The sentence spoken by him that “Kabhi Kabhi Mera Dimag Kharab Ho Jata Hai” is not sufficient to provide him benefit of Section 84 of the Indian Penal Code. Neither documentary nor oral evidence has been adduced by the appellant to prove that on the date of occurrence he was suffering from mental disorder and the offence was committed in that state of mind. The charges framed against him were read over and explained to him in Hindi but he pleaded not guilty and claimed to be tried. Likewise in the statement recorded under section 313 Cr.P.C. he did not admit that the offence was committed by him by reason of unsoundness of mind and he was incapable of knowing the nature of the act. The facts and evidence on record clearly suggests that the appellant was discharging all his duties properly and he was aware of his right. To some extent in his confessional statement he has pointed out particulars of motive behind the occurrence. Since the plea taken by the appellant at the stage of appeal was neither taken nor substantiated during trial, learned APP has relied on the Judgment reported in: (i) (2009)9 SCC 495 - Jagdish Vs. State of Madhya Pradesh. (ii) (2010)10 SCC 582 - Sudhakaran Vs. State of Kerala. (iii) (2013)12 SCC 270 - Mariappan Vs. Since the plea taken by the appellant at the stage of appeal was neither taken nor substantiated during trial, learned APP has relied on the Judgment reported in: (i) (2009)9 SCC 495 - Jagdish Vs. State of Madhya Pradesh. (ii) (2010)10 SCC 582 - Sudhakaran Vs. State of Kerala. (iii) (2013)12 SCC 270 - Mariappan Vs. State of Tamil Nadu Besides the above the prosecution has substantiated the charge by adducing evidence and one of the witness namely Subbo Kumari (P.W. 12) is none else but the daughter of the appellant and she is an eye witness to the occurrence. This witness has stated that her father had killed her mother and two sisters and he had also caused injury to her aunt (Badki Maa). He had chased this witness to cause assault but somehow she escaped and hide. The informant is also an eye witness to the occurrence and he has supported the prosecution case. There is no merit in this appeal and the same is liable to be dismissed. 6. We have perused the case record from which it appears the appellant has confessed his guilt before the Police and said confessional statement has been proved as Ext.-9. It reveals from Ext.-9 that the appellant after committing murder concealed the axe in the Dhaba of the house and it was recovered on his pointing out and seizure list (Ext.-8) for recovery of axe used for commission of murder was prepared. The confessional statement of appellant was recorded by the Judicial Magistrate under Section 164 Cr.P.C. and that has been proved as Ext.-10. Lolark Dubey (P.W. 11) has recorded the statement of appellant under Section 164 Cr.P.C. and the certificate appended clearly suggests that he was quite competent to give his statement and his mental condition was perfect. The occurrence took place on 02.08.2004 and within two days i.e. 04.08.2004 statement of appellant under Section 164 Cr.P.C. was recorded. Subbo Kumari (P.W. 12), daughter of the appellant is an eye witness and she has fully supported the prosecution case. The informant Dinesh Oraon is also an eye witness and he has been examined as P.W. 1. It is obvious that he has tried to save his uncle and turned hostile but he has admitted that fardbayan was written on his dictation and it was read over to him before he put his signature on Ext.-1. The informant Dinesh Oraon is also an eye witness and he has been examined as P.W. 1. It is obvious that he has tried to save his uncle and turned hostile but he has admitted that fardbayan was written on his dictation and it was read over to him before he put his signature on Ext.-1. Therefore, the evidence on record is consistent, convincing and inspire confidence that the appellant has committed murder of his wife and two daughters and further caused injuries to mother of the informant. Since the counsel appearing for the appellant has sought for benefits provided under Section 84 of the Indian Penal Code, we Would like to examine the same, which reads as under:- “84. Act of 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 benefit of this provision is available to a person who at the time when the act was done was incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law. The implication of this provision is that the offender must be of this mental condition at the time when the act was committed and the fact that he was of unsound mind earlier or later are relevant only to the extent that they, along with other evidence, may be circumstances in determining the mental condition of an accused on the day of incident. In this context Section 105 of the Evidence Act is relevant which reads as under:- “105. 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. 4. Shall presume - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as provided unless and until it is disproved. 4. Shall presume - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as provided unless and until it is disproved. Proved - A fact is said to be ‘proved’ when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Disproved - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.” Section 101 of the Evidence Act speaks about burden of proof and the same reads as under:- “101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that-those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of “shall presume” in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. It is also settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 is the time when the offence is committed. 7. We have carefully gone through the case record and we do not find that the appellant from the institution of the case till pronouncement of the Judgment at stage has raised for the benefits of Section 84 of the Indian Penal Code. It is necessary to mention that no document or evidence has been adduced by the appellant to prove that the offence was committed in the state of unsoundness of mind’. Contrary to that within two days of the institution of the case, the appellant has admitted his guilt and his statement was recorded under Section 164 Cr.P.C. (Ext.-10). When the statement of appellant was recorded under Section 313 Cr.P.C. he has not taken a plea that at the time of occurrence he was suffering from unsoundness of mind or any mental disorder. For the first time at the time of argument this plea of Section 84 of the Indian Penal Code has been taken by the appellant. This view taken by us further find support from the Judgment in the case of “Mariappan Vs. State of Tamil Nadu” reported in (2013)12 SCC 270 . The fact appearing in the case at hand does not tally with the facts appearing in the Judgment cited by the appellant. No period prior to date of occurrence during which the appellant was suffering from any mental disorder has been brought on record. State of Tamil Nadu” reported in (2013)12 SCC 270 . The fact appearing in the case at hand does not tally with the facts appearing in the Judgment cited by the appellant. No period prior to date of occurrence during which the appellant was suffering from any mental disorder has been brought on record. No medical certificate has been proved to support that on the date of occurrence or prior to that the appellant was suffering from mental disorder. No other evidence has been adduced by the appellant to have benefits of exemption under Section 84 of the Indian Penal Code. In the circumstances we are not inclined to consider the plea of exception provided under Section 84 of the Indian Penal Code and the arguments so advanced stands rejected. 8. In the result, this appeal stands dismissed. Appeal dismissed.