Calcutta High Court
Baburam Mahali vs State Of West Bengal on 22 July, 2005
Equivalent citations: (2005)3CALLT331(HC), 2006(3)CHN614
JUDGMENT Arun Kumar Bhattacharya, J.
1. The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge. Jalpaiguri in Sessions Case No. 26 of 1996 on 02.06.97.
2. A thumbnail sketch of the Prosecution case is that on 13.06.93 at about 11.00 a.m. when the defacto complainant's wife Kaushila Mahali (P.W.7) with her minor daughter Sakita, aged about two years, on back was returning from river Leesh, accused Baburam Mahali suddenly started assaulting the said child with a lathi, for which his wife fell down and then the accused assaulted the child with a stone resulting in her death on the spot and injury of his wife. The people nearby rushed to the P.O., caught the accused. The injured wife was removed to Garden Hospital where she was admitted. Hence, the accused was charged under sections 325/302 IPC.
3. The defence case, as suggested to P.W.s and as contended by the accused during his examination under Section 313 Cr PC, is that no such incident took place. While Kaushila was crossing the river, she with her daughter fell down on the bolder of the river, for which she and her daughter sustained injuries and her daughter ultimately died on account of the said injuries.
4. 12 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the learned Court below found accused guilty under Sections 302/324 IPC, convicted him thereunder and sentenced him to suffer imprisonment for life and rigorous imprisonment for two years and to pay fine of Rs. 2000/- i.d. to R.I. for six months respectively.
5. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal.
6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.
7. The vital witnesses in this case are P.Ws. 3, 4, 6 to 8, who are eyewitnesses, P.W. 10 (P.M. doctor) and P.W. 11 (I.O.), others being formal or post occurrence witnesses.
8. According to the evidence of P.W. 1, about 4 1/2 back on one Sunday after returning from market he saw the dead body of his daughter Sakita in his house and thereafter he went to hospital and found his wife Kaushlla (P.W. 7), who was not in a position to speak, in injured condition on her head. He came to learn from his neighbours Dhuri (P.W. 3), Chunia (P.W. 4) & Anil (P.W. 5) that accused Baburam killed his daughter and injured his wife with lathi and stone. Bandhan (P.W. 2) scribed the FIR, according to his statement and he put L.T.I, thereon. Subsequently police came and saw the dead body of his daughter. P.W.2 after return from the market on 13.06.93 at about 12/12.30 p.m. came to learn from the members of his family regarding admission of Feku's wife in the hospital and murder of his daughter by Baburam. He went to the house of Feku (P.W. 1), found the dead body of his daughter and came to learn from the members of his own family that the person who assaulted the wife and daughter of Feku was tied. He went to the field, found Baburam tied with a tree and asked him as to why he committed the offence, to which he gave no reply and started crying. He further learnt that while the wife (P.W. 7) and daughter of Feku were returning, home, Baburam assaulted them.
9. P.W. 7 deposed that about 4 years back, on one Sunday at about 11.00. a.m. while she was returning to house from river Leesh with her minor daughter Sakita, aged about two years, on her back, suddenly Baburam came there and started assaulting her daughter with a lathi and when the lathi was broken, he assaulted her and also her daughter with a stone (Mat Ext. 1), for which she sustained injury on her head and became unconscious. She regained sense at the hospital and came to learn that her daughter had expired. The injuries sustained by her on head, as disclosed in the injury report (Ext. 5) are (i) 3" deep cut mark up to bone on left parietal region and (ii) 1 1/2" deep cut mark on mid frontal region caused by a blunt weapon. P.W. 12, M.O. Leesh River Tea Garden, deposed with reference to admission register of the hospital that on 13.06.93 one Kaushila was admitted in their hospital upto 30.06.93. He however, could not produce the bed-head ticket as if could not be traced out. The above evidence in material particulars is corroborated by P.Ws. 3, 4, 6 & 8. P.W. 3 stated that about 4 years back on one Sunday at about 11.00 a.m. while P.W. 7 was proceeding towards her house from river Leesh with her minor daughter on back, Baburam started assaulting her and her daughter with lathi and when the lathi was broken, with a stone. He along with others, rushed to the P.O., caught Baburam, tied him with a tree and then removed P.W. 7 and her daughter. The doctor declared the said daughter dead. Subsequently police came, arrested the accused and took him to the P.S. He subsequently narrated the incident to Feku (P.F1.1) and Bandhan Lakra (P.W. 2). Similar is the evidence of P.Ws. 4, 5 & 8 who witnessed the occurrence from a distance of about 400/500 feet. It is the evidence of P.W. 8 that he was playing cards by the side of the river along with Dhuri (P.W. 3), Anil (P.W. 5), Mantu (P.W. 6), Prokash and others, and on being attracted by a cry they noticed the occurrence. He further stated that Baburam assaulted with branch a of tree (stick) and when it was broken he assaulted with a bolder and P.W. 7 became unconscious. P.W. 5, who was declared hostile by the prosecution, stated that on hearing the information about murder of the daughter of Feku and assault on his wife by Baburam at about 11.00 a.m., went to the field and found Baburam being tied with a rope. Subsequently police went there and took him, he said. As per evidence of P.W. 9 - O.C., Mal P.S., S.I. - L.C. Singha on receipt of a telephonic message on 13.06.93 from the Head Clerk of Leesh River Tea Garden that one Baburam, a worker of the garden, assaulted a minor child and mother seriously, diarised the same vide G.D. Entry No. 391 dated 13.06.93 (Ext. 7) and informed the matter to him when he directed S.I. S. Haider (P.W. 11) to look into the matter and he proceeded towards the P.O. after recording G.D. No. 392. On receipt of a written complaint from Feku Mahali (P.W. 1) being forwarded by P.W. 11 he started Mal P.S. case No. 86/93 dated 13.06.93 under sections 325/302 IPC against accused Baburam Mahali and endorsed the case to P.W. 11 for investigation. P.W. 10 on holding P.M. examination over the dead body of the victim Sakita Mahali on 14.06.93 found depressed fracture over the vault of skull - 3" x 2 1/2", and on dissection, blood inside the brain and membrane lacerated and opined that the death was due to shock and haemorrhage on account of head injury which was ante mortem and homicidal in nature. The injuries might have been caused by hard and blunt substance like stone, lathi etc. and there might be instant death on account of the said injury. It is his further opined that such type of injury may not be possible on account of fall on hard substance. P.W. 11 as per direction of P.W. 9 went along with force to line No. 18 at about 14.10 hours, enquired about the matter locally when a complaint (Ext. 1) was received by him from P.W. 1 and he forwarded the same to P.W. 9. He took up investigation of the case, visited the P.O., drew up a rough sketch map with index, seized some blood stained earth, controlled earth, one stone weighing about 2 kg smeared with blood (Mat Ext. 1) and one branch of tree in two pieces measuring 2' each under a sizure list (Ext. 4) in presence of witnesses, held inquest over the dead body of the victim, forwarded the dead body to Jalpaiguri Sadar Hospital for P.M. examination, examined witnesses including the injured Kaushila (P.W. 7) who was admitted in the Tea Garden Hospital, collected P.M. report and injury report (Ext. 5) of P.W. 7 and submitted charge sheet against the accused under sections 326/304 IPC.
10. There are some discrepancies e.g. that the accused Baburam assaulted P.W. 7 with lathi, as deposed of P.Ws. 3, 9, 6 & 8, is not supported by P.W. 7, that as per evidence of P.W. 8, P.W. 6 was playing cards by the side the river but P.W. 6 stated that he was working in the field at that time etc. which are minor and cannot undo the effect of evidence. They are deposing after more than 3 1/2 years. The errors due to lapse of memory may be given due allowance and the discrepancies which do not shake the basic version of the prosecution case and which are due to normal errors of perception or observation should not be given importance. That the accused committed murder of the child with lathi and stone and caused injury of P.W. 7 with the said stone, as deposed by P.W. 7 which is corroborated by eyewitnesses P.Ws. 3, 4, 6 & 8, supported by post occurrence witnesses P.Ws. 1 & 2 and buttressed by medical evidence, has no where been denied in their cross-examination. None of the said witnesses is inimical to the accused nor any suggestion was put to P.W. 7 that the said injuries were caused due to fall on bolder in the river. The evidence is so clear and cogent, so independent and disinterested that there cannot be a moment's doubt to accept that none but the accused committed murder of the child and caused injury to P.W. 7 with a piece of stone.
11. Mr. P.S. Bhattacharya, learned counsel for the appellant, on referring the cases of Srikant Anandrao Bhosale v. State of Maharashtra, reported in 2003 C.Cr.LR (SC) 14 and Dinoprasad Barman v. State of West Bengal reported in 2003 C.Cr.LR (Cal.) 847 and on taking us through the evidence of different witnesses contended that the materials on record demonstrate that his client was suffering from insanity at the time of the incident, and as such he is entitled to the benefit of section 84 IPC and he deserves to be exempted from conviction. Mr. R.P. Bhattacharya, learned counsel for the State, in his usual fairness, fully supported the above contention and adversely criticized the performance of the investigating agency contending that had it followed the procedure laid down in Section 53 Cr. PC, the actual state of affairs relating to the accused would have been elicited.
12. The said Section 53 authorises examination of the arrested person by a registered medical practitioner at the request of a police officer if from the nature of the alleged offence or from the circumstances under which it was alleged to have been committed, there is reasonable ground for believing that such an examination will afford evidence. In other words, the object of such examination is to obtain valuable evidence e.g. (i) for ascertaining the part of the accused in a sexual offence, or for finding out the injuries received by him or (ii) for identification mark or (iii) examination of internal parts, taking of fluids (in intoxication case) etc. So, the question of following the procedure of Section 53 Cr.P.C. by I.O. did not arise at all.
13. Nevertheless, the burden to prove that the appellant was of unsound mind, for which he was incapable of knowing the consequences of acts is on the defence in view of Section 105 of the Evidence Act. Section 84 IPC deals with the "general exceptions". In dealing with insanity the following established principles have to be borne in mind: (a) Every type of insanity is no legal insanity unless the cognitive faculty of mind is destroyed as a result of unsoundness to such an extent as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law; (b) the Court shall presume absence of insanity; (c) the burden of proof of insanity is on the accused though it is not as heavy as it is on the prosecution to prove an offence; (d) every minor mental aberration is not insanity, and circumstances indicating a mere possibility or legal insanity cannot, however, be sufficient to discharge the onus resting on the accused; (e) to attract the immunity provided in section 84 of the Indian Penal Code, the Court has to consider whether the accused suffered from legal insanity at the time when the offence was committed. In reaching this conclusion the circumstances which preceded, attended, and followed the crime are relevant considerations; and (f) when a plea of insamiy is raised, it is not the duty of the prosecution to establish, affirmatively, that the accused was capable of knowing the nature of the act or knowing that what he was doing, was either wrong or contrary to law. Every person is presumed to know the law, and the natural consequences of his act. The Prosecution in discharging its burden in the face of the plea of insanity has merely to prove the basic fact and rely upon the normal presumptions aforesaid. It is then that the accused is called upon to rebut those presumption and the inferences in such manner as would go to establish his plea.
14. In Bhosale case (supra), it was held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. The burden of proof on the accused to prove insanity is no higher than that rests upon a party of civil proceedings which, in other words, means preponderance of probabilities.
15. In the case on hand, before examination of the Prosecution witnesses, a petition was filed on behalf of the accused praying for inquiry under Section 328 Cr. PC to ascertain whether the accused was suffering from mental illness which was allowed. Dr. Ashis Kumar Sarkar, M.O. of Jalpaiguri Sadar Hospital on examination of the accused on 11.07.1996 found him restless and agitated and he complained of carefulness and insomnia. He found him mentally ill but he was not mentally unsound and opined that the patient may convert to unsoundness if he is provoked by anybody. He could not take the prolonged legal history of the accused. P.W. 1 know that accused Baburam who is also a resident of Line No. 18 is not mentally fit. P.W. 2 on receipt of information about murder of the daughter of P.W. 1 went to the field, found the accused tied with a tree and on his query as to why he committed the offence, the accused did not give any reply and started crying. He also learnt from the members of the public that the accused became mentally ill a few days before the incident. It is the evidence of P.Ws. 6 to 8 that when P.W. 7 was returning with her child on her back, the accused suddenly appeared there and started assaulting the child. P.W. 9 stated that in the said GD No. 391 there is a note that the accused was reportedly mentally disturbed. There is no evidence that the accused was inimical either to P.W. 7 or to her minor daughter, aged about two years.
16. In order to find out whether the accused was by reason of unsoundness of mind incapable of knowing the nature of the act, the Court may rely on what is elicited from the Prosecution witnesses as well as from circumstantial evidence, subsequent conduct of the accused and the surrounding circumstances including absence of motive. The absence of motive assumes not only unusual importance but also crucial importance in a case where a child aged about two years was murdered and her mother was assaulted without any reason, as a matter of fact, in such a case, the act speaks for itself as the act of a mad person, the act itself is intrinsically chief evidence of insanity. It is the totality of the circumstances in the light of the evidence on record which leads to show that the appellant was suffering from mental unsoundness, for which he was incapable of knowing the nature of the act done by him at the time of the offence such a person lacks a requisite mens rea and is entitled to an acquittal. In this connection, the case of Jai Lal v. Delhi Administration, may be referred to. Accordingly, the accused has been able to discharge the onus cast upon him under Section 105 of the Evidence Act. So he is entitled to the benefit of Section 84 of the Indian Penal Code.
17. In the premises, in the light of the above discussion, the order of conviction and sentence passed by the learned Court below cannot be sustained.
18. As such, the appeal be allowed on contest. The order of conviction and sentence passed by the learned Court below in Session Case No. 26 of 1996 be set aside. The accused is found not guilty and he be acquitted of the charge under Section 302 IPC and be set at liberty at once.
19. The accused be released forthwith from custody if not required in connection with any other case.
20. Alamats, if any, be destroyed after the period of appeal is over.
21. Let a copy of this Judgment along with the LCR be sent down at once to the learned Court below.
D.P. Sengupta, J.
I agree.