Himachal Pradesh High Court
Vinod Alias Dinesh vs State Of Himachal Pradesh on 23 June, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 95 of 2016
Reserved on: June 22, 2016.
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Decided on: June 23, 2016.
Vinod alias Dinesh ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
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Whether approved for reporting? Yes.
For the appellant: Mr. Partap Singh Goverdhan, Advocate.
For the respondent: Mr. M.A.Khan, Addl. AG.
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Justice Rajiv Sharma, J.
rt This appeal is instituted against the judgment and order dated 15.12.2015 and 19.12.2015, respectively, rendered by the learned Special Judge, Shimla, H.P. in Sessions Trial No. 6-S/7 of 2014, whereby the appellant-accused (hereinafter referred to as the accused), was charged with and tried for offences punishable under Sections 376 (F) and 506 of IPC and Section 6 of the Protection of Children From Sexual Offences Act, 2013 (hereinafter referred to as POCSO Act). The accused was sentenced to undergo rigorous imprisonment for a period of fourteen years and to pay fine of Rs. 50,000/- under Section 6 of the POCSO Act and in default of payment of fine he was ordered to further undergo simple imprisonment for a period of one year. The accused was also sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 506 IPC. Both the sentences were ordered to run concurrently. The prosecutrix was also held entitled for a sum of Rs. 2,00,000/- as compensation in addition to the amount of Rs.
::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 250,000/- as awarded separately. The amount was ordered to be given to the prosecutrix out of the State Government's Victim Compensation Fund .
for the purpose of rehabilitation. The copy of the judgment was sent to the Member Secretary, H.P. State Legal Services Authority, Shimla.
2. The case of the prosecution, in a nut shell, is that the prosecutrix (PW-1), appeared before the Police Station, Rohroo along with of her father on 1.12.2013. She moved an application stating therein that she has been raped by the accused. She is a Nepali national and residing with her parents in the rented house at Rohroo. The accused happened rt to be her maternal Uncle. He also used to reside in a room in the building in which the prosecutrix along with her parents used to reside. The accused was running a Dhaba. On 27.7.2013, the prosecutrix was called by the accused in his room on the pretext of some work. She was raped.
When she tried to scream, the accused gagged her mouth. The accused threatened her that she and her parents would be finished in case she disclosed this fact to anyone. Thereafter, the victim stopped working in the hotel of the accused. She also became pregnant. Thereafter F.I.R. No. 94/2013 was registered. The prosecutrix was sent to DDU Hospital, Shimla for medico legal examination. The doctor opined that the age of the prosecutrix was between 12 to 14 years. The spot was visited by the I.O. The doctor also found the evidence that the prosecutrix was subjected to coitus. She was also found to be pregnant carrying pregnancy of 21 weeks and 4 days. According to the date of birth certificate, the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 3 prosecutrix was born on 15.05.2000 and at the time of incidence she was about 13 years 2 months and 12 days. The police also filed the .
supplementary challan on 10.08.2014 by stating therein that during the investigation, the blood samples of accused were taken and when on 07.03.2014 the victim gave birth to a male child then the blood sample of the victim and her newly born child were also taken for DNA profiling. In of the DNA profiling, the child victim was found to be the biological mother of the male child whereas the male child was found to be the biological son of the accused.rt The matter was investigated and on completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 18 witnesses. The accused was also examined under Section 313 Cr.P.C. He has denied the prosecution case. The accused has examined as many as 12 witnesses in defence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Partap Singh Goverdhan, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General, for the State has supported the judgment and order of the learned trial Court dated 15.12.2015 and 19.12.2015, respectively.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 46. The prosecutrix (name withheld) has appeared as PW-1. She deposed that the accused was related to her as her maternal uncle .
(Mama). He was also residing in Kanwar Singh Building. He was running a Dhaba at Maindhli. She was working in the Dhaba for the last one year.
On 27.07.2013 she was present in the Dhaba of the accused. The accused called her in his quarter at about 10:00 p.m. He shut the door of the room of and also put curtain on the window. She enquired from the accused as to why he has closed the door and put on the curtains. The accused told that he would tell her later on.
rt The accused caught hold of her and untied the string of her Salwar and made her to lie on the bed. He subjected her to sexual intercourse. He also gagged her mouth. Near the bed, one knife was lying on the floor. The accused after performing sexual intercourse threatened her not to disclose the incident to anybody otherwise he would kill her. Thereafter, he left the room. She also left work after this incident from the Dhaba of the accused. After some time her menstruation stopped and she felt pain in her stomach. She also felt giddiness. She disclosed the incident to her parents. She was not knowing that she was pregnant. Thereafter, she went to the police station Rohroo where application Ext. PW1/A was filed. Her statement was also recorded under Section 164 Cr.P.C. vide Ext. PW1/B. In her cross-examination, she stated that in the ground floor of the building there were 6-7 tenants, out of which three rooms were occupied by the family of the accused. The accused was residing in one corner of the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 5 ground floor. Her school was at a distance of 10 minutes walk from her residence. There were 6-7 persons working in the Dhaba of accused.
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They used to work in the Dhaba from 7:00 AM to 7:00 PM. The accused was having wife and two children aged 6 and 8 years. She has studied up to 5th standard at Government School Gangtoli. Her parents have also lodged missing report at Police Post, City Rohroo. She along with of her friend Chameli had gone to Kullu prior to the incident. The accused had forcible intercourse with her only on 27.07.2013. She denied the suggestion that she had physical relations with Rahul also.
rt She denied the suggestion that her grand-father pressurized the accused and his family to pay Rs.20,00,000/- to settle the matter.
7. PW-2, Tek Bahadur is the father of the prosecutrix.
According to him, the prosecutrix was born on 15.05.2000 at Rohroo.
She studied up to 5th standard. On the request of the accused he directed the prosecutrix to attend some work in the Dhaba. On 1.12.2013, the prosecutrix complained of pain in her stomach. Her menstruation also stopped. She became pregnant. The matter was brought to the notice of the police on the basis of application Ext. PW-
1/A. He denied the suggestion in his cross-examination that they concocted false story of working of prosecutrix in the Dhaba of the accused. He denied the suggestion that his father-in-law demanded Rs.20,00,000/- from the accused. He also stated that on 27.07.2013 his daughter was at home and not in the Dhaba of the accused. He further ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 6 stated that she might have worked up to 11:00-12:00 at midnight at the Dhaba of the accused.
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8. PW-3, Laxmi Machan has proved school living certificate of the prosecutrix vide Ext. PW-3/A. The entry of the admission of the prosecutrix was made in the admission and withdrawal register of the school at Sr. No. 5329. The date of birth of the prosecutrix was recorded of as 15.05.2000. Certificate Ex.PW3/A was prepared by her on the basis of admission register of the school.
9. PW-4, Dr. Sunil Sharma has examined the accused.
rt He
issued MLC Ext.PW-4/B. The prosecutrix was produced before him by
LC Inna. The consent of the guardian (father) of the prosecutrix was obtained as the prosecutrix was minor. He had drawn her blood sample for DNA profiling on F.T.A. card and sealed the same and handed over the sample to the police. He issued report Ext.PW-4/D. On the same date i.e. 1.07.2014 he had drawn blood sample of three months old baby of prosecutrix on F.T.A. card. The consent of the grandfather of the baby was also obtained. In his cross-examination, he admitted that in Exts.
PW-4/D and PW-4/E, there is no mention of sealing of F.T.A. card.
Volunteered that they used to mention sealing of sample on the F.S.L. form.
10. PW-6, Dr. Shikha Sood has issued report Ext.PW-6/A. She also examined the prosecutrix for pregnancy. The ultrasound gestational ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 7 age of the foetus was 21 weeks and 4 days. The skeletal/radiological age of the prosecutrix was between 12 ½ and 15 ½ years.
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11. PW-7, Dr. Nishi Sood testified that she conducted the medico legal examination of the prosecutrix with alleged history of sexual intercourse on 27.07.2013 at 10:00 PM. According to the case history, the prosecutrix was in the house of the accused along with three other of children. The victim was called by her uncle to his room. Her hands were tied behind her back with clothes. Her clothes were removed. The episode lasted for 2-3 hours according to the victim. Her uncle showed rt her knife and told her not to tell anything otherwise he would kill her.
The period of gestation was 19 plus one week. The expected date of delivery was 28th April. She has not noticed any physical or violence injury on the body of the prosecutrix.
12. PW-8 Dr. Ansul Mokta is the Dental Surgeon. He opined the age of the prosecutrix within a range of 12 to 14 years. He appended his opinion on the back side of the MLC Ext. PW-7/A which is Ext.PW-8/A.
13. PW-9 Rakesh Thakur has brought the birth register maintained in KNH, Shimla. According to the record, the prosecutrix gave birth to male child on 07.03.2014 at about 12:30 AM.
14. PW-12 L.C. Inna deposed that on 1.07.2014, as per the direction of SHO, Police Station Rohroo, she took prosecutrix and her new born baby to Civil Hospital, Rohroo for preserving their blood for DNA profiling.
::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 815. PW-14 Insp. Amar Chand deposed that on 1.07.2014 he sent the prosecutrix and her newly born baby to Civil Hospital Rohroo through .
LC Inna for taking their blood samples for DNA profiling.
16. PW-15 ASI Balraj deposed that on the direction of SHO Police Station, Rohroo, he took the accused to Civil Hospital for taking his blood for DNA profiling as also for F.T.A. card on 07.12.2013.
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17. PW-16 Dr. Himanshu testified that on 7.12.2013 the police of Police Station, Rohroo moved an application before him for taking blood samples of accused for DNA profiling.
rt He filled in the identification form
of the accused vide Ex.PW-16/C. He obtained the blood samples of the
accused on the FTA cards. Thereafter, he sealed the FTA cards and
handed over the same to the police along with MLC and identification form.
18. PW-17 Dr. Aparna Sharma, Senior Scientific Officer, State Council for Science, Technology and Environment, Shimla testified that three sealed parcels were received in DNA division for DNA profiling on 03.07.2014. The seals on the parcels were intact and tallied with the specimen seals sent along with docket. After DNA profiling, she gave her opinion at point "A" encircled in report Ex.PW-14/A. According to her opinion, the prosecutrix was the biological mother of the male child whereas accused was biological father of the baby of the prosecutrix. In her cross-examination, she deposed that the science relating to D.N.A. is 99.99% perfect.
::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 919. PW-18 Insp. Chander Sekhar testified the manner in which the application was filed before him and F.I.R. Ext. PW-18/A was .
registered. He got the prosecutrix medically examined. In his cross-
examination, he specifically stated that during his tenure no dispute arose between the parties. It also did not come during the investigation that the accused at the relevant time was having any ailment. He also of denied that at that time the accused was under the treatment of doctor for his mental ailment. He also denied that during treatment electric shock was also applied upon the accused.
rt He also denied that the accused was falsely implicated.
20. DW-2 Vicky testified that the accused was known to him.
The accused had a quarrel with Prem Singh Nepali. Prem Singh Nepali has filed a complaint against the accused and later on the matter was compromised. The complaint was moved in the month of September, 2013.
21. DW-3 Ramesh testified that the mental condition of the accused was not good. He took the accused to his house due the mental derailment, number of times.
22. DW-4 Sher Singh deposed that he knew the prosecutrix. On 24.05.2013 two girls fled away from Rohroo. Missing report was lodged.
The accused and his maternal grandfather had lodged the report.
23. DW-5 Sandeep testified that the accused was his real brother.
In the year 2006-07, the accused was suffering mental ailment. At that ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 10 time he was taken to hospital at Dharmpur. During his treatment, electric shocks were given to the accused, as and when the accused faced .
the problem and he always remained with him. The accused was running a Dhaba.
24. DW-6 Dr. Virendra Mohan deposed that the accused was his patient. He was admitted in his hospital on 06.11.2006 and discharged of on 9.11.2006. He was suffering from psychiatric disorder (Mania and Bhang/Cannabis abuse). As per the history given by the patient, he was suffering from this disease for the last 3 months. The patient was again rt admitted on 17.02.2007 and discharged on 12.03.2007. During his admission, he was given Electro Convulsive Therapy (E.C.T) six times. He was again admitted on 14.12.2009 and discharged on 19.12.2009. He was given two time E.C.T. Thereafter, the patient visited his hospital as outdoor patient five times and lastly he attended his hospital on 18.09.2010. In his cross-examination, he specifically admitted that when the patient lastly visited his hospital, he had improved a lot.
25. DW-7 Chameli deposed that the prosecutrix was her class fellow as well as her friend. About two year ago, on 25th she and prosecutrix had stayed in a hotel at Kullu along with two boys. The grandfather of the prosecutrix filed a complaint. Thereafter, she informed her father who brought them back.
26. DW-8. Ms. Soni deposed that the accused has converted his religion. He was Christian on 27.07.2013. She along with accused was ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 11 sitting in a restaurant at Rohroo market. She obtained a room on rent.
They both stayed there and left the room next day. In her cross-
.
examination, she admitted that the house of the accused was situated at a distance of about 1- 1 ½ Kms away from the restaurant namely, Bethak. She informed her family regarding her stay at Rohroo. They made entry in the visitor register of the hotel in which they stayed. She of had not taken the accused to hospital when he fell ill.
27. DW-9 Kamla deposed that there was quarrel between the family of Prem Bahadur and her brother and father.
rt Thereafter, compromise took place between the parties.
28. DW-10 Ajay Sharma, Pharmacist deposed that the accused had remained under treatment with psychiatry department. They used to supply medicine. As per the record, the accused was getting the treatment from the month of March, 2015.
29. DW-11 Moti Lal deposed that according to the record, on 27.07.2013 a guest namely, Dinesh Karki stayed in their hotel. The abstract of register is Ext. DW-11/A. In his cross-examination, he admitted that Rohroo is a big village and he had not mentioned the specific address of the visitor. He did not remember whether any ID proof of the person was taken into possession who stayed in their hotel.
30. DW-12 Dr. Ramesh Kumar deposed that during his visit to Model Central Jail, Kanda, he examined the accused. He continued the medicine, which was earlier prescribed to him. He examined the patient ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 12 on 23.10.2015 for bi-polar affective disorder. He was already under treatment for the said disease. He could not comment with certainty that .
the patient of such disease could harm any person. In his cross-
examination he deposed that the treatment of the accused started with the IGMC on 18.03.2015.
31. PW-1 is the prosecutrix. According to the date of birth of certificate, duly proved on record, the date of birth of the prosecutrix was 15.5.2000. The accused had employed her in his hotel (Dhaba). The prosecutrix has categorically testified in her examination-in-chief that she rt was present in the Dhaba on 27.7.2013 and accused called her to his quarter. He raped her. He also threatened her. She did not disclose this incident to her parents. She felt pain in her stomach and thereafter she was taken to the hospital. She also disclosed that she was pregnant. The testimony of the prosecutrix has not at all been shattered in her cross-
examination.
32. The statement of the prosecutrix has been duly corroborated by PW-6, Dr. Shikha Sood. PW-6 Dr. Shikha Sood has examined the prosecutrix for pregnancy. According to her, the skeletal/radiological age of the prosecutrix was between 12 ½ and 15 ½ years. The ultrasound gestational age of the foetus was 21 weeks and 4 days. PW-7, Dr. Nishi Sood has conducted the medico legal examination of the prosecutrix with alleged history of sexual intercourse on 27.07.2013 at 10:00 PM.
According to her, as per reports received from Dentist and Radiologist, the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 13 age of the prosecutrix was between 12 to 14 years. PW-8 Dr. Ansul Mokta has issued MLC Ext. PW-7/A. He has opined that the age of the .
prosecutrix was within the range of 12 to 14 years. PW-3 Laxmi Machan has proved the date of birth of the prosecutrix vide Ext. PW-3/A. The date of birth of the prosecutrix as per the admission register was 15.05.2000.
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33. PW-9 Rakesh Thakur has testified that a male child was born on 7.3.2014 at 12:30 AM in the KNH, Shimla. PW-12 LC Inna has taken the prosecutrix and her new born baby to Civil Hospital, Rohroo for rt preserving their blood for DNA profiling. PW-14 Insp. Amar Chand has sent PW-12 LC Inna for collecting blood samples for DNA profiling of the newly born baby of the prosecutrix. PW-16 Dr. Himanshu has taken the blood of the accused for DNA profiling. PW-17 Dr. Aparna Sharma has proved her report vide Ext. PW-14/A. According to her, the prosecutrix was the biological mother of the male child whereas accused was biological father of the baby of the prosecutrix. She has deposed categorically that the blood samples were taken on the FTA card. The seals and the parcels were intact and tallied with the specimen seal sent along with the docket. Thus, there is no merit in the contention of Mr. Partap Singh Goverdhan, Advocate, that the seals were not put on the parcels.
34. Mr. P.S.Goverdhan, Advocate, has also argued that his client was insane at the time of commission of offence. This plea cannot be ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 14 accepted. DW-3 Ramesh has only stated that the mental condition of accused was not good. He took the accused to his house due to mental .
derailment, number of times. This is a general statement. DW-5 Sandeep has deposed that the accused was suffering from mental ailment. He has also taken the accused to hospital at Dharampur. The electric shocks were given to the accused. DW-6 Dr. Virendra Mohan deposed that the of accused was his patient. He was admitted in his hospital on 06.11.2006 and discharged on 9.11.2006. He was suffering from psychiatric disorder (Mania and Bhang/Cannabis abuse).
rt As per the history given by the patient, he was suffering from this disease for the last 3 months. The patient was again admitted on 17.02.2007 and discharged on 12.03.2007.
During his admission, he was given Electro Convulsive Therapy (E.C.T) six times. He was again admitted on 14.12.2009 and discharged on 19.12.2009. The incident is dated 27.7.2013. In his cross-examination, DW-6 Dr. Virendra Mohan has admitted that he has noticed improvement at the time of discharge of the accused.
35. In the instant case, it cannot be said that accused was incapable of knowing the nature of act or that he was doing what was either wrong or contrary to law. There is no evidence or circumstance that accused was having unsoundness of mind at the time of commission of offence. There is no evidence that accused was having unsoundness of mind before the occurrence and at the time of commission of crime.
::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 1536. Their Lordships of the Hon'ble Supreme Court in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 have .
held that that when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.
of The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Their Lordships have held as under: rt "9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.
14. The subsequent events leading up to the trial make it abundantly clear that the plea of insanity was a belated afterthought and a false case. After the accused came out of the room, he was taken to the chora and was confined in a room in the chora. P. W. 16, the police sub-inspector reached Bherai at about 9.30 a.m. He interrogated the accused;
recorded his statement and arrested him at about 10.30 a.m. According to him, as the accused was willing to make a confession, he was sent to the judicial magistrate. This witnesses described the condition of the accused when he met him thus:
"When I went in the Chora he had saluted me and he was completely sane. There was absolutely no sign of insanity and he was not behaving as an insane man. He was not abusing. He had replied to my questions understanding them and was giving relevant replies.::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 16
And therefore I had sent him to the Magistrate for confession as he wanted to confess.'' There is no reason to disbelive this evidence, particularly .
when this is consistent with the subsequent conduct of the accused. But P. W. 9, who attested the panchanama, Ex. 19, recording the condition of the accused's body and his clothes, deposed that the accused was murmuring and laughing. But no mention of his condition was described in the panchnama.
Thereafter, the accused was sent to the Medical Officer, Matar, for examination and treatment of his injuries. The doctor examined the accused at 9.30 p.m. and gave his evidence as P. W. 11. He proved the certificate issued by him, of Ex. 23. Nothing about the mental condition of the accused was noted in that certificate. Not a single question was put to this witnesses in the cross-examination about the mental condition of the accused. On the same day, the accused was sent to the Judicial Magistrate, First Class, for making a rt confession. On the next day he was produced before the said Magistrate, who asked him the necessary questions and gave him the warning that his confession would be used against him at the trial. The accused was given time for reflection and was produced before the Magistrate on April 13, 1959. On that date he refused to make the confession. His conduct before the Magistrate, as recorded in Ex. 31 indicates that he was in a fit condition to appreciate the questions put to him and finally to make up his mind not to make the confession which he had earlier offered to do. During the enquiry proceedings under Ch. XVIII of the Code of Criminal Procedure, no suggestion was made on behalf of the accused that he was insane. For the first time on June 27, 1959, at the commencement of the trial in the sessions court an application was filed on behalf of the accused alleging that he was suffering from an attack of insanity. On June 29, 1959, the Sessions Judge sent the accused to the Civil Surgeon, Khaira, for observation. On receiving his report, the learned Sessions Judge, by his order dated July 13, 1959, found the accused insane and incapable of making his defence. On August 28, 1959, the court directed the accused to be sent to the Superintendent of Mental Hospital, Baroda, for keeping him under observation with a direction to send his report on or before September 18, 1959. The said Superintendent sent his report on August 27, 1960 to the effect that the accused was capable of understanding the proceedings of the court and of making his defence in the court. On enquiry the court held that the accused could understand the proceedings of the case and was capable of making his defence. At the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 17 commencement of the trial, the pleader for the accused stated that the accused could understand the proceedings. The proceedings before the Sessions Judge only show that for a .
short time after the case had commenced before him the accused was insane. But that fact would not establish that the accused was having fits of insanity for 4 or 5 years before the incident and that at the time he killed his wife he had such a fit of insanity as to give him the benefit of S. 84 of the Indian Penal Code. The said entire conduct of the accused from the time he killed his wife upto the time the sessions proceedings commenced is inconsistent with the fact that he had a fit of insanity when he killed his wife."
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37. Their Lordships of the Hon'ble Supreme Court in Ratan Lal v. The State of Madhya Pradesh, AIR 1971 SC 778 have held that the rt crucial point of time at which unsoundness of mind has to be proved is the time when the crime is actually committed. The burden of proving this can be discharged by the accused from the circumstances which preceded, attended and followed the crime. their Lordships have held as under:
"2. 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. (See State of Madhya Pradesh v. Ahmadullah, (1961) 3 SCR 583 = (AIR 1961 SC
998). In D. C. Thakkar v. State of Gujarat, (1964) 7 SCR 361 = (AIR 1964 SC 1563); it was laid down that "there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings." It was further observed:
"The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 18 circumstances which preceded, attended and followed the crime."
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38. Their Lordships of the Hon'ble Supreme Court in Sheralli Wali Mohammed v. State of Maharashtra, AIR 1972 SC 2443 have held that law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of of the crime. The mere fact that no motive has been proved why the accused murdered his wife and child, or the fact that he made no attempt to run rt away when the door was broken open would not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence. Their Lordships have held as under:
"12. To establish that the acts done are not offences under S. 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offence, he was labouring under any such incapacity?
On this question, the state of his mind before and after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thakkar v.
The State of Gujarat, (1964) 7 SCR 361 at p. 367 = (AIR 1964 SC 1563), Subba Rao, J., as he then was, speaking for the Court said "(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may rebut it by ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 19 placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to .
civil proceedings. (3) 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 by the accused or by the prosecution 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 of prosecution was not discharged.''
13. With this in mind, let us consider the evidence to see whether the accused was in an unsound state of mind at the time of the commission of the acts attributed to him, P. W. 3, one of the brothers of the accused stated that the rt accused used to become excited and uncontrollable, that sometimes he behaved like a mad man, and that he was treated by Dr. Deshpande and Dr. Malville. P. W. 4, Hyderali, also a brother of the accused, has stated that the accused used to suffer from temporary insanity and that he was treated by Dr. Deshpande and Dr. Malville. The evidence of these two witnesses on the question of the insanity of the accused did not appeal to the trial Court and the Court did not, we think rightly, place any reliance upon it. No attempt was made by the defence to examine the two doctors. There was, therefore, no evidence to show that, at the time of the commission of the acts, the accused was not in a sound state of mind. On the other hand, P. W. 8, Rustom Mirja, has stated in his deposition that the accused has been working with him as an additional motor driver for the last 8 or 10 years and that his work and conduct were normal. He also stated that the accused worked with him on March 6, 1968, till 4 P.M. P. W. 16, Dr. Kaloorkar, who examined the accused at 7.20 A.M. on the day of the occurrence, has stated in his deposition that he found that the accused was in normal condition. His evidence has not been challenged in cross- examination.
We think that not only is there no evidence to show that the accused was insane at the time of the commission of the acts attributed to him, but that there is nothing to indicate that he had not the necessary mens rea when he committed the offence. The law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 20 upon arguments derived merely from the character of the crime. The mere fact that no motive has been proved why the accused murdered his wife and child or, the fact that he .
made no attempt to run away when the door was broke open, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offence. We see no reason to interfere with the concurrent findings on this point either."
39. Their Lordships of the Hon'ble Supreme Court in Elavarasan vs. State represented by Inspector of Police, (2011) 7 SCC of 110 have held that the burden of bringing his/her case under section 84 of the Indian Penal Code lies upon person claiming benefit thereof.
rt Standard of proof which accused has to satisfy for discharge of burden under section 105 is not same as is expected of prosecution. It is enough for accused to establish his defence on preponderance of probabilities as in a civil case. Their Lordships have held as under:
"22. The question, however, is whether the appellant was entitled to the benefit of Section 84 of Indian Penal Code 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 who is incapable of knowing that what he is doing, is either wrong or contrary to law. Before adverting to the evidence on record as regards the plea of insanity set up by the appellant, we consider it necessary to refer to two aspects that bear relevance to cases where a plea of insanity is raised in defence by a person accused of a crime. The first aspect concerns the burden of proving the existence of circumstances that would bring the case within the purview of Section 84 of the I.P.C. It is trite that the burden of proving the commission of an offence is always on the prosecution and that the same never shifts. Equally well settled is the proposition that if intention is an essential ingredient of the offence alleged against the accused the prosecution must establish that ingredient also.
23. There is no gainsaying that intention or the state of mind of a person is ordinarily inferred from the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 21 circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the .
body on which it is struck, it would be reasonable to assume that the accused had the intention to cause the kind of injury which he inflicted. Having said that, Section 84 can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. But what is important is that the burden of bringing his/her case under Section 84 of the IPC lies squarely upon the of person claiming the benefit of that provision.
24. Section 105 of the Evidence Act is in this regard relevant and may be extracted:
"105. Burden of proving that case of accused comes rt within exceptions.-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."
25. A careful reading of the above would show that not only is the burden to prove an exception cast upon the accused but the Court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code or within any special exception or provision contained in any part of the said Code or in law defining the offence. The following passage from the decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 may serve as a timely reminder of the principles governing burden of proof in cases where the accused pleads an exception:
"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:
(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 22 sense laid down by Section 84 of the Indian Penal Code:
the accused may rebut it by placing before the court all the relevant evidence oral, documentary or .
circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) 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 by the accused or by the prosecution 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 of would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."
26. The second aspect which we need to mention is that the standard of proof which the accused has to satisfy for the rt discharge of the burden cast upon him under Section 105 (supra) is not the same as is expected of the prosecution. A long line of decisions of this Court have authoritatively settled the legal proposition on the subject. Reference in this connection to the decision of this Court in State of U.P. v. Ram Swarup and Anr., (1974) 4 SCC 764 should suffice where this court observed:
"The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in his favour."
To the same effect is the decision of this Court in Bhikari v. State of Uttar Pradesh (AIR 1966 SC 1)."
40. Their Lordships of the Hon'ble Supreme Court in Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 495 have held that to discharge the onus under section 84, accused must prove his conduct prior to offence, at the time or immediately after offence, with reference to his medical condition. Whether accused knew that what he was doing was wrong or that it was contrary to law is of great importance and may ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 23 attract culpability despite mental unsoundness having been established.
Their Lordships have held as under:
.
"13. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, of his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that rt the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him.
14. Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219, in which it has been held as follows:
"9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
10. In State of M.P. v. Ahmadull,AIR 1961 SC 998, this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 24 be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for .
availing of the benefit of the exceptions under Chapter IV.
11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the of commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought."
41. rt Their Lordships of the Hon'ble Supreme Court in Mariappan vs. State of Tamil Nadu, (2013) 12 SCC 270 have held that burden of proving the case of accused comes within exceptions under section 105 of the Evidence Act, 1872 lies on the accused. Their Lordships have held as under:
"13. The evidence of PWs 1 and 2 - the eye-witnesses, the evidence of PWs 3 and 4, who saw the accused running after the occurrence with Aruval (M.O.I) and the recovery of the weapon at the instance of the accused which was found to be stained with human blood of "O" group, as per the serologist report (Ex.P.12), tallied with the blood group of the deceased as the clothes of the deceased viz., M.O.s 1 to 4 were also stained with human blood "O" group clearly prove the case of the prosecution. Further, the medical evidence through PW-9- the Doctor, who conducted the post-mortem and issued the report (Ex.P-3) strengthened the version of PWs 1 and 2.
14. From the materials analyzed, discussed and concluded by the trial Court and the High Court, it clearly establishes that it was the accused-appellant who committed the murder."::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 25
42. The plea of alibi also cannot be accepted since the statements of DW-8 Ms. Soni and DW-11 Moti Lal do not inspire confidence. The .
house of the accused was only at a distance of 1 ½ Km. from the Restaurant, namely, Bethak. The accused either should have been taken to his house by DW-8 Ms. Soni when he fell ill or he should have been taken to the hospital.
of
43. DW-12 Dr. Ramesh Kumar has deposed that he examined the patient on 23.10.2015 for bi-polar affective disorder. In his cross-
examination, he admitted that the treatment of the accused started with rt IGMC Shimla on 18.3.2015. It is reiterated that the incident is dated 27.7.2013. Similarly, DW-10 Ajay Sharma, Pharmacist has deposed that according to the record, the accused was getting treatment from the month of March, 2015. The insanity has to be seen at the time of commission of offence. There is no enmity between the families of the accused and the prosecutrix. The suggestion made to the prosecutrix and her father PW-2 Tek Bahadur that ransom was demanded has been denied by both of them. There was no occasion for the prosecutrix's family to falsely implicate the accused, who is none other than the maternal uncle of the prosecutrix.
44. The prosecution has proved the case against the accused and the learned trial Court has correctly scanned the entire evidence available on record. There is no reason for us to interfere with the well reasoned judgment and order of the learned trial Court dated 15.12.2015 and ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 26 19.12.2015, respectively. Accordingly, there is no merit in this appeal, the same is dismissed. However, before parting with the judgment, it .
would be pertinent to mention here that the learned trial Court has also awarded compensation of Rs. 2,00,000/- to the prosecutrix to be paid through the agency of H.P. State Legal Services Authority in addition to Rs. 50,000/- imposed by way of fine. The prosecutrix is doubly in of disadvantageous position since she has to maintain herself and her baby.
She belongs to the lowest strata of the society. She has already suffered a lot. Thus, she needs a special rehabilitation.
rt However, since the prosecutrix has to maintain herself and the male child, the judgment of the learned trial Court is modified to this limited extent that the prosecutrix will be entitled to a sum of Rs. 10,000/- per month as victim compensation in addition to Rs. 50,000/- awarded to her by way of fine till her life, instead of Rs. 2,00,000/- under the Himachal Pradesh (Victim of Crime) Compensation Scheme, 2012 framed under Section 357-A of the Code of Criminal Procedure, 1973 in view of the definitive law laid down by their lordships of the Hon'ble Supreme Court in the case of Tekan alias Tekram vs. State of Madhya Pradesh (Now Chhattisgarh), reported in (2016) 4 SCC 461, wherein it has been held as follows:
"9. From the inquiry, it reveals that the victim (now aged about 37 years) lives alone in Village Nandini Kundini, District- Durg, Chhattisgarh. She is unmarried and lives in a kuccha house. She has two brothers who lives separately ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 27 from her. One of the brothers Ishwari Sahu lives in a different village Dhour (distance 12 kms from Nandini Kundini).
.
Another brother Baldau Sahu lives is district Bhila (distance 22 kms from Nandini Kundini) and works as a daily-labourer. She receives a pension of Rs.300/- per month from the State being a person with disability. She is also a BPL card holder which entitles her 35kg rice per month at the rate of Rs.1/- per kg. and free salt. The financial status of victim's brothers of is also not good.
15. Coming to the present case in hand, victim being physically disadvantaged, she was already in a socially rt disadvantaged position which was exploited maliciously by the accused for his own ill intentions to commit fraud upon her and rape her in the garb of promised marriage which has put the victim in a doubly disadvantaged situation and after the waiting of many years it has worsened. It would not be possible for the victim to approach the National Commission for Women and follow up for relief and rehabilitation. Accordingly the victim, who has already suffered a lot since the day of the crime till now, needs a special rehabilitation scheme.
17. Indisputably, no amount of money can restore the dignity and confidence that the accused took away from the victim.
No amount of money can erase the trauma and grief the victim suffers. This aid can be crucial with aftermath of crime.
19. In the result, we dismiss the appeal having no merit and issue the following directions:-
1) All the States and Union Territories shall make all endeavour to formulate a uniform scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP 28 required under the law taking into consideration the scheme framed by the State of Goa for rape victim compensation;
.
2) So far as this case is concerned, the respondent State shall pay a sum of Rs.8,000/- per month as victim compensation to the victim who is physically handicapped, i.e. blind, till her life time."
45. The State Government is also directed to provide free education to the child of the prosecutrix/victim up to post graduate level.
of A copy of this judgment be sent to the Chief Secretary to the State of Himachal Pradesh/Member Secretary H.P. State Legal Services Authority rt within one week for necessary compliance.
( Rajiv Sharma ), Judge.
June 23, 2016, ( Chander Bhusan Barowalia ), Judge.
(karan) ::: Downloaded on - 15/04/2017 20:38:36 :::HCHP