Raijesh vs State Of M.P. on 30 January, 2018

[Cites 11, Cited by 0]

Madhya Pradesh High Court

Raijesh vs State Of M.P. on 30 January, 2018

This Criminal Appeal has been filed by the sole appellant being aggrieved by judgment dated 22nd February, 2006 passed by the Court of 2nd Additional Sessions Judge, Ashoknagar, Guna, in Sessions case No.224/2005.

2. Vide aforesaid judgment, the appellant has been convicted under the provisions of Section 302 of IPC and has been sentenced to life imprisonment with fine of Rs.10,000/-. In default of depositing the fine, additional one year rigorous imprisonment has been directed to be undergone by the convict.

3. The brief facts leading to the present appeal are that appellant approached his brother Tejsingh in the early hours of 24.5.2005 and informed him that at about 2 am on 24.5.2005 he has killed his wife Rumal Bai with the help of an axe and asked him to burn the dead-body at the earliest, failing which he may be required to go to jail. As per the prosecution story, in the previous night Tehsingh had gone to sleep after dinner alongwith a relative who had come from Munderi. At about 2.30 am appellant Brijesh approached him with the request to burn the body of Rumal Bai and when Tej Singh asked him as to why he committed such incident, appellant Brijesh informed him that Rumal Bai was indulging in quarrel and did not listen to him, therefore, he killed Rumal Bai. Thereafter, Tej Singh awakened relative Rampal and 2 visited the place of incident where the dead-body of Rumal Bai was lying on the bed with deep wounds causing detachment of half of the neck. Thereafter, they called their relative Mishrilal and at about 6 am report was lodged by Tej Singh at police Station, Ishagarh.

4. Investigation was carried out and after preparation of Panchayatnama Lash accused was arrested and on his intimation weapon of assault i.e. axe was seized. Police also prepared the spot map, collected blood stained soil and simple soil and sent the seized items for forensic examination.

5. Police Station, Ishagarh, on completion of investigation, filed the charge-sheet in the Court of JMFC, Ashoknagar, which committed the case to the Court of Sessions from where it was assigned to the Court of 2nd Additional Sessions Judge, Ashoknagar, Guna.

6. The appellant/accused denied the charges, but he accepted that Tej Singh is his brother, Rampal is his nephew, Khalak Singh is his brother-in-law and Khilan Singh is his father- in-law. He also accepted that police had arrested him, but denied seizure of axe and also stated that he hit Rumal Bai with two axe blows. He also expressed that he appears to be an insane. The main defence of the appellant is insanity.

7. Learned counsel for the appellant has also prima facie based his case on the ground of insanity and submits that in the light of the insanity expressed by the appellant he should have been acquitted in terms of the provisions contained in Section 84 of IPC which provides that 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. Learned counsel for the appellant submits that because the appellant is a person of unsound mind, he was not knowing the gravity of the acts attributed to him, and therefore, he should have been acquitted.

8. Learned Public Prosecutor for the State on the other hand submits that the evidence which has come on record reveals that the appellant was not a person of unsound mind and he was aware of his acts. He places reliance on the statement of Tej Singh (PW-1) who has clearly mentioned that appellant had 3 expressed to him that he was having some doubt over his wife. He has admitted lodging of report Ex.P/1 and also admitted the fact that appellant was arrested in front of him vide arrest memo Ex.P/5 which contains his signature from A to A part and that of the appellant from B to B part. He has also admitted the seizure memo Ex.P/6 containing his signatures. He has further admitted that appellant had informed him on that very day that he has killed his wife Rumal Bai and also asked for disposal of the dead-body through burning. In cross-examination, though he stated that mental condition of his brother is not proper and he is a person of unsound mind for last 9 years and is being treated at Mental Hospital, Gwalior, where some electric shock was also given to him. This witness has also admitted that Brijesh had run away after the incident and returned after taking bath and asked for food. Khilan Singh (PW-2), father-in-law of the appellant, has also admitted that he had received phone call from Tej Singh informing that appellant Brijesh had caused death of Rumal Bai with an axe. Similarly, Rampal (PW-7) son of Sardar Singh has admitted that he had visited village of Brijesh to fill hay and at night Brijesh had informed that he has killed his wife Rumal Bai and asked to burn the body.

9. Dr. S.S.Chhari (PW-8) who was posted as Medical Officer at Primary Health Center, Ishagarh, and carried out postmortem vide his report Ex.P/9 has opined that death of the deceased was homicidal and occurred within 12 hours of the postmortem. It was caused by hemorrhagic shock and cardio respiratory failure due to ante-mortem injury over vital organs of neck and brain damaged. Learned Public Prosecutor also submits that besides this no application was moved before the Sessions Judge requesting him to adopt the procedure as prescribed under Chapter 25 of the Cr.P.C. which deals with the accused persons of unsound mind, therefore, plea of unsound mind is not tenable at this stage. In support of his argument, learned Public Prosecutor has placed reliance on the judgment in the case of Sadashivu Balappa Samagar v. State of Karnataka, as reported in 2006 Cri.L.J. 899 wherein it has been held that as per Section 8 of the Evidence Act motive for offence need not be proved when there is clear prosecution evidence which 4 establishes involvement of the accused. Similarly, reliance has been placed on the judgment of the Supreme Court in the case Sudhakaran Vs. State of Kerala as reported in (2010) 10 SCC 582 wherein it has been held that if defence of insanity is taken, then to claim the benefit of said defence accused would have to prove that his cognitive faculties were so impaired, at the time when crime was committed, as not to know nature of act. Reliance has also been placed on the judgment of the Supreme Court in the case of Elavarasan v State as reported in AIR 2011 SC 2816 where ratio is again that where plea of insanity is taken, then merely the conduct of the accused of not fleeing from the spot would not in itself show that person concerned was insane at the time of commission of offence. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Mariappan vs. State of Tamil Nadu as reported in (2013) 12 SCC 270 wherein the ratio is that when the crime is actually committed, then accused was suffering from unsoundness of mind and that alone will entitle him to benefit of exception under Section 84 of IPC.

10. In the above backdrop, it is necessary to examine whether the provisions of Section 84 of IPC are fulfilled in the present case or not so to give advantage of unsound mind to the appellant.

11. As has been mentioned above, the basic ingredient of Section 84 of IPC is the timing of the act at which point of time an accused is required to show that he was of unsound mind and was incapable of knowing the nature of the act, which he was doing, to be contrary to law. In this backdrop, no evidence has been led by the appellant to show that at the time of offence at about 2 am he was suffering from any insanity. Though there is pleading of insanity by prosecution witnesses like Tej Singh (PW-

1), Khilan Singh (PW-2) and Khalak Singh (PW-4), but no documents have been filed on record to show past treatment of the appellant at any hospital. In absence of such papers and any specific evidence to show that at the time of the incident he was suffering from any incapacity of unsoundness of mind, no direct inference can be drawn about unsoundness of mind of the appellant. At this point of time, it will be necessary to appreciate the circumstances which were prevailing at the time of incident 5 and soon thereafter to gauge the state of mind of the accused. It has come in the statement of Tej Singh (PW-1) that appellant approached him, informed him about killing of his wife and then asked him to dispose of the body through burning. Similar statement has been given by another person who was staying with Tej Singh for that night as he had come to collect hay namely Rampal (PW-7). Thus, at the time of incident or soon thereafter the appellant was knowing the consequences of death of his wife and the gravity of the offence inasmuch as he categorically asked his brother to dispose of the body by burning fearing action at the hands of the police.

12. Similarly, it has come on record that after narrating the incident appellant Brijesh had run away and returned after taking bath, that means he was aware of the fact that he is required to take bath so to help disappearance of blood stains from the body which would have been a direct evidence against him. In view of such facts and evidence as has been led by Tej Singh (PW-1) and Rampal (PW-7) so also the accused statement under Section 313 Cr.P.C. given before the Sessions Judge, it is revealed that appellant was understanding the relationship and categorically admitted that Tehsingh is his brother, Khalak Singh is brother-in-law and Khilan Singh is his father-in-law. Similarly, he admitted that Rampal is his nephew and also that police had arrested him. This statement clearly reveals that appellant was in a position to understand his good and bad and was not a person of unsound mind at the time of incident. In this regard, law laid down by the Supreme Court in the case of Bhikhari v. The State of Uttar Pradesh as reported in AIR 1966 SC 1 can be referred to for support wherein the ratio of the law is that as per the provisions contained in Section 105 of the Evidence Act, where the plea of insanity is invoked by the accused, it is for him to establish that fact. The Supreme Court held that there is no doubt that the burden of proving an offence is always on the prosecution and that it never shifts. It would, therefore, be correct to say that intention when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Thus if a person deliberately strikes another with a deadly weapon, which 6 according to the common experience of mankind is likely to cause an injury and sometimes even a fatal injury depending upon the quality of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from the act. In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the offence, namely the intention of the accused in inflicting a blow with a deadly weapon. Section 84 of IPC can no doubt be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Now it is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law.

13. Everyone is presumed to know the natural consequences of his act. Similarly everyone is also presumed to know the law. These are not facts which the prosecution has to establish. It is for this reason that Section 105 of the Evidence Act places upon the accused burden of proving the exception upon which he relies. In the present case, mens rea can also be gathered from the statement of Tejsingh (PW-1) and Rampal (PW-7) who have categorically deposed that appellant was having doubts over the character of his wife and he used to follow her even if she was going to answer the call of nature. In view of such facts, it can be conveniently be inferred that due to doubt on the character of the wife, the appellant knowing the consequences attacked her with a deadly weapon namely axe causing death through injury for which there existed sufficient mens rea and the circumstances reveal that the accused was not a person of unsound mind nor did he suffer from any insanity at the time of the incident.

14. Besides this, there is another aspect which is to be appreciated in this matter that again onus was on the appellant to show that whether there was any trespassing or burglary or any third party entering into the house with a motive to commit such offence because admittedly the appellant was the person available at the scene of crime. This aspect is actually secondary 7 inasmuch as appellant has himself admitted that he has given axe blows to his wife.

15. In view of the aforesaid discussion, this appeal fails and is dismissed. Before parting, it is our duty to place on record appreciation for the assistance rendered by Mr. A.K.Jain, counsel engaged through Legal Aid.

               (Anand Pathak)                           (Vivek Agarwal)
                  Judge                                     Judge
ms/-

MADHU SOODAN
PRASAD
2018.02.01 12:02:08
+05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court