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2017 DIGILAW 923 (MP)

Titru v. State of M. P.

2017-08-21

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2017
JUDGMENT : V. K. SHUKLA, J. In the instant appeal, challenge has been made to the conviction and sentence of the appellant for offence punishable under section 302 of Indian Penal Code to undergo imprisonment for life and fine of Rs. 200/- in default, to suffer Rigorous Imprisonment for 3 months. 2. Prosecution case is that on 18-06-2005, at about 5.30 P.M., the appellant caused death of Jhari Bai by inflicting head injury with the help of a stone. 3. The prosecution case is based on the testimony of eye witness Phoolbati (PW-5), who is sister of the appellant. She has deposed that deceased Jhari Bai is her maternal aunty. She had gone in her in-laws village Kodajhir, where the deceased had come. It is alleged that when she was talking to her, at that time, her brother appellant Titru came and hit the head of the deceased with a stone and had given repeated blows. When she tried to stop him, the appellant is alleged to have also chased her to cause injury. The incident is alleged to have taken place in the afternoon at about 3 P.M. and the deceased died in the night at about 12. 4. The post-mortem was carried out by Dr. D. S. Karcham (PW-12), who has deposed that the deceased had died due to injury inflicted on her head. He has confirmed that the stone, which is alleged to have been used in the present case could have caused injuries which were received by her. The stone was recovered on the disclosure statement of the accused vide Ex.P-1 and also sent for FSL. 5. The main argument of the counsel for the appellant is that the appellant is an unsound person and therefore, he could not have been convicted. From the deposition of PW-5 Phoolbati, who is real sister of the appellant, it cannot be said that the appellant is a person of unsound mind. He has said that all the witnesses have stated that the appellant was having problem of epilepsy (Mirgi). This Court had granted bail to the appellant but he could not furnish the bail bonds in pursuance to the order dated 12-1-2011. Thereafter, it was submitted on behalf of the appellant that his mental condition was found to be not proper when he was directed to be released on personal bond. This Court had granted bail to the appellant but he could not furnish the bail bonds in pursuance to the order dated 12-1-2011. Thereafter, it was submitted on behalf of the appellant that his mental condition was found to be not proper when he was directed to be released on personal bond. This Court directed the State to submit a report with regard to the mental condition of the appellant by order dated 14-5-2015. 6. The case of the appellant was found to be a patient of epilepsy, for which he was being given treatment in the jail. The trial Court has taken into consideration the argument regarding the unsound mind of the appellant in para-11 and found that neither any such application was filed on behalf of the defence for his cross-examination nor any document in that regard. All the witnesses have stated that the appellant is suffering from the disease epilepsy which cannot be said to be a mental disorder, it is only a physical disorder. 7. The defence of the appellant regarding insanity/unsoundness of mind of the appellant could not be proved, as he has been found only suffering from epilepsy. Expression “unsoundness of mind” has not been defined in Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term “insanity” carries different meanings in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. In the present case the disease which has been found in the medical report is only a physical disability and not legal insanity as required for a defence under section 84 of Indian Penal Code. The legal insanity is differentiated from mental insanity as held by the Apex Court in the case of Surendra Mishra vs. State of Jharkhand, (2011)11 SCC 495 . 8. Thus, on the basis of the evaluation of the testimony of PW-5 Phoolbati and the other evidence, it cannot be held that the accused is of unsound mind. On the contrary, the prosecution case has been corroborated by PW-5 Phoolbati. 9. In view of the aforesaid discussion, we do not find any merit in the appeal, as the prosecution has successfully proved the case against the present appellant on the basis of ocular and other evidence. Hence, the appeal sans merit and is dismissed.