Himachal Pradesh High Court
Bhupesh Kumar @ Kaka @ Tinku vs State Of H.P on 9 October, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 83 of 2015 Reserved on: 24.09.2015 Date of Decision: 09.10.2015 .
Bhupesh Kumar @ Kaka @ Tinku .....Appellant.
Versus
State of H.P. ...Respondent.
of
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Satyen Vaidya, Sr. Advocate
with Mr. Vivek Sharma,
Advocate.
For the respondent: Mr. Ramesh Thakur, Asstt.
Advocate General.
__________________________________________ Per Sureshwar Thakur, Judge
1. This appeal is directed against the judgement rendered on 31.12.2014 by the learned Sessions Judge (Forests), Shimla, in Sessions trial RBT No. 37-S/7 of 2013/88, whereby the latter convicted and sentenced the accused for his having committed offences punishable under Sections 302 and 307 IPC.
2. The accused convict is aggrieved by the renditions of the learned Sessions Judge (Forests), Shimla. Being aggrieved he has assailed the findings recorded therein by instituting the instant appeal before this Court. Moreover, obviously a prayer has been made therein that his appeal be accepted and the findings of conviction recorded against him by the learned trial ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 2 Court qua his having committed offences punishable under Section 302 IPC as well as under Section 307 IPC be reversed and set-aside in exercise of its appellate jurisdiction by this Court.
3. The prosecution story, in brief, is that in the early hours of .
the morning of 24.3.1988 at about 4 a.m when Sanjeev Sharma and his brother Raj Kumar were sleeping, some cries were heard from the house of Tara Chand whereupon brother of Sanjeev Sharma, Mr. Raj Kumar went there and thereafter Sanjeev Kumar of heard the cries of his brother Raj Kumar, so he also ran after him. When Sanjeev Sharma reached at the door of Tara Chand house rt he found Raj Kumar in an injured condition outside the room and another person Bhupesh Kumar, who was working in the A. G. Office and was known to him was inside the room having one Khukhari in his hand, which was blood stained and that person Bhupesh tried to run away, so he bolted the door from outside so that he cannot ran away from the spot. When he reached, his brother Raj Kumar told him that Bhupesh had given Khukhari blows to him and to Vivek and had also killed Kumari Poonam. Vivek had run away by jumping from the window. He brought Raj Kumar to the Ripon hospital and then reported the matter to the police.
4. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial Court charged the accused for his having committed offence punishable under Sections 302 and 307 IPC to which he pleaded not guilty and claimed trial.
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5. In order to prove its case, the prosecution examined as many as 21 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of .
proceedings under Section 313 Cr.P.C the accused person was given an opportunity to adduce evidence, in, defence, and he chose to adduce evidence in defence.
6. The accused/appellant is aggrieved by the judgement of of conviction recorded by the learned trial Court. Shri Satyen Vaidya, learned Senior Advocate, has concertedly and vigorously rt contended that the findings of conviction recorded against the accused/appellant by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction recorded against the accused/appellant be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal.
7. On the other hand, the learned Assistant Advocate General appearing for the State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the trial Court, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
8. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
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9. The ill-fated occurrence took place on 24.03.1988 at about 3.45 a.m. On the aforesaid date and time the accused/convict is alleged to have ingressed the house of deceased Poonam and put her to death by delivering blows on her person with a Khukhari .
Ext.P-1. Ext.P-1 was found lying at the site of occurrence and was taken into possession vide seizure memo Ext.PW-2/A. Both Raj Kumar and Vivek who interceded in the assault perpetrated by the accused on deceased Poonam with Khukhari were too of subjected to assault by the accused with Khukhari Ext.P-1. Both Raj Kumar and Vivek sustained injuries on their respective rt persons as manifested in MLCs Ext.PW-14/B and Ext.PW-7/A prepared respectively qua their persons by PW-14 and PW-7. A complaint qua the occurrence was lodged before the authorities concerned by PW-12 Sanjeev Sharma.
10. The evidence on which the prosecution relies to sustain the charges against the accused, is embedded on direct evidence or on eye witness account qua the occurrence having been rendered by injured victims PW-9 Vivek Sharma, PW-6 Raj Kumar. The deposition of PW-9 who sustained injuries on his person as reflected in Ext.PW-14/B, has in his ocular version deposed on oath qua the incident bespoken therein with vividity besides with graphic enunciation the factum of on 23.03.1988 after he and his deceased sister having had dinner at about 10 or 10.30 p.m theirs having bolted the house and theirs having proceeded to go to sleep. He proceeds to depose the fact that the bed of his sister was near the door. In the morning at about 3.45 or 4.00 a.m the door bell of his house rang and his rearing an impression that it ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 5 had been sounded by his brother who had returned from Delhi he asked his deceased sister Poonam to open the door. On the door of his house having come to be opened by his deceased sister, he deposes that he over heard the accused outpouring invectives .
"Kuti Haramjadi Main Tujhe Chhodunga Nahin Khatam Kar Dunga" against her. He continues to depose that he over heard the cries of his sister and noticed that she had fled towards the bed room. Further more, he deposes that the accused was of wielding a Khukhari in his hand and in his presence he delivered with it 2-3 blows on the head of his deceased sister sequelling her rt to fall near the almirah. Besides he deposes that when he tried to come out of the bed room the accused gave 2 blows of Khukhari on her left arm and in order to avert his attempt to deliver more blows of Khukhari on the person of his deceased sister Poonam he took to fling a quilt at the accused. Despite the aforesaid effort on the part of PW-9 to concert to avert the assault by the accused on his deceased sister as well as on his person with Khukhari, the accused still delivered 2-3 blows with Khukhari yet on account of a quilt having been flung by him at the accused, the said blows of Khukhari delivered by the accused on his person proved abortive. He testifies that he delivered a kick at the abdomen of the accused which sequelled the Khukhari to be freed from the hands of the latter. He deposes that though he ran to wield the Khukhari yet the accused succeeded in wielding it and proceeded to deliver blows with Khukhari on his head and on other part of his body. On his raising alarm 'Bachao Bachao' Raj Kumar PW-6 the other injured witness came to the ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 6 site of occurrence and rescued him from the accused. Even though the accused ran towards PW-9 yet he jumped out of the drawing room through the window. PW-9 was rendered unconscious and was hospitalized. During the course of the .
recording of his deposition in Court he identified Ext.P-1 to be the Khukhari wielded by the accused and with which he delivered blows on his person as well as on the person of his deceased sister. The testimony of PW-9 who rendered an eye witness of account qua the ill fated occurrence has been with aplomb lent corroboration by PW-6 Raj Kumar. PW-6 in his deposition has rt unearthed the fact that on 24.3.1988 he and his brother Sanjeev were sleeping in the room. He has proceeded to depose that at about 4. a.m they over-heard cries emanating from the house occupied by PW-9. On hearing cries emanating from the house of deceased Poonam and of PW-9, he proceeded towards their premises. He deposes that he found the door of the premises bolted. On his opening the door, he deposes that he noticed that the electricity was on and the accused was delivering blows with Khukhari on the person of Poonam, who was sitting near the almirah. Besides he deposes that he observed that PW-9 Vivek, the younger brother of deceased Poonam, was in an injured condition. On PW-6 entering the premises occupied by deceased Poonam and PW-9 the injured eye witness to the ill fated occurrence, the latter egressed from the room. He continues to depose that he concerted to repulse the assault perpetrated with Khukhari by the accused on deceased Punam yet the accused proceeded to also assault him by giving blows on his left arm with ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 7 Khukhari. Moreover, he deposes that the accused also delivered blows on his head and near his eye-brows. Despite his attempt to repulse the assault perpetrated on his person by the accused by raising his right arm the latter proceeded to deliver blows with .
Khukhari on his arm as well. He deposes that the accused proclaimed that he would kill Poonam and would also kill PW-6.
On hearing the noise his younger brother has been deposed by him to have also arrived at the site of occurrence. He continues of to testify that he also came out of the room whereafter his brother bolted the door from outside and carried him to hospital rt for medical aid. This witness has deposed that the accused was his class fellow and was also class fellow of Poonam's brother Rakesh. This witness has also deposed that about 2-3 days before the occurrence the accused had apprised him that he wanted to marry Poonam and had solicited his services to negotiate his marriage with deceased Poonam, which requisition made to him by the accused has been deposed to have been declined by PW-6.
11. PW.12 is the informant, who visited the site of occurrence on his hearing cries emanating from the house occupied by PW.9 and by deceased Poonam. On his arriving at the site of occurrence, he deposes that he saw PW.6 in an injured condition besides he deposes that he saw the accused wielding a blood stained Khukhari in his hand. He also testifies that he dragged his brother from outside and bolted the door from outside.
12. The evidence comprised in the testimonies of the aforesaid eye witnesses to the occurrence is not ridden with any taint of ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 8 theirs while rendering in their respective examinations in chief a graphic besides a vivid ocular account qua the ill-fated occurrence having contradicted the said rendition, in their deposition comprised in their respective cross examinations, so as to spur an .
inference that they have deposed a version qua the incident ridden with the vice of inter se contradiction. Apart therefrom, an incisive scrutiny of their testimonies upsurges an inference that they have deposed an ocular version qua the incident bereft of of any vice of intra se disharmony or inconsistency, which malady of intra se contradictions afflicting their respective testimonies would rt have rendered them to be construable to be tainted, hence, incredible. Sequelly when they have respectively deposed a version qua the incident with aplomb consistency besides with intera se harmony renders open an inference that they, hence, corroborate their respective versions qua the incident on oath deposed by each of them. Furthermore, when a threadbare analysis of their respective testimonies on oath omits to portray that either of them have while testifying in Court improved or embellished upon their previous statements qua the occurrence recorded in writing at their instance by the Investigating Officer concerned hence fosters an inference that their testimonies qua the occurrence are both inspiring, trustworthy besides obviously credible. Both PW-9 and PW.6 have during the course of recording of their respective depositions on oath identified Khukhari Ext.P.1, recovered under memo Ext.PW-2/A to be the weapon wielded by the accused to assault deceased Poonam as well as to inflict on their respective persons the injuries as ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 9 pronounced in their respective MLCs comprised in Ext.PW.14/A and Ext.PW.7/B. Moreover, PW.14 who subjected PW.9 to medical examination and proved MLC Ext.PW.14/B prepared by him on his subjecting PW.9 to medical examination, has deposed .
that the injuries comprised in Ext.PW.14/B the relevant portion whereof stands extracted hereinafter are sequellable by the user of Khukhari Ext.P.1 shown to him in Court. He has also deposed that the injuries are dangerous to life, if the victim's bleeding was of not controlled well in time .
"1. Five incised wounds measuring 4-8 cms in length rt with 1-1&½ cms graping on vertex and occipital region of scalp. All wounds were spindle shaped and freshly bleeding. There were bone deep.
2. Multiple incised wounds on posterior aspect of right forearm measuring 4-8 cms X 1-3 cms with spindle shape and muscle deep. These were bleeding as shown in the adjacent figure. Muscle tendons were exposed.
3. Left upper limb was showed multiple incised wounds, which were spindle shape and muscle deep. Near left wrist these were bone deep with marked swelling and bony tenderness over left forearm in lower half. All wounds were freshly bleeding and were on posterior aspect of left upper limb.
4. Right lower limb had two contused lacerated wounds and one was 8X3 cms. Obliquely placed incised wound which was bone deep and muscle tendons were exposed.
13. Also PW.7 who subjected PW.6 Raj Kumar to medical examination and prepared qua him MLC Ext.PW.7/A has in his deposition recorded on oath communicated the fact that the hereafter extracted injuries comprised in Ext.PW.7/A as stand proven by him are sequellable by the user of Khukhari Ext.P.1 ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 10 shown to him in Court. Besides he has deposed that the injuries depicted therein and found occurring in the skull region are dangerous to life.
"(i). Incised wound spindle shaped, borader towards right and .
narrower towards left in the middle of scalp 10 CM X 2½ X ½ . The margins were clean cut and gaping. The injury was bleeding profusely. The galeaponeuritica was cut and would was bone deep.
(ii). Incised wound on right parietal region 3 cm X 1½ cm X 1 cm, spindle shaped. The margins of wound were clean cut and of gaping. Bleeding was present.
(iii) Incised wound over the left upper lid in the eye brow region in the centre 2½ cm X 1½ cm X 1 cm. Bleeding was present. rt There was avulsion of the eye brow.
(iv) Lacerated wound ½ cm X ½ cm just below the left lower lid margin contusion around the wound.
(v) incised wound over the left arm in the deltoid region, spindle shaped ( on antero lateral aspect of the arm) 8 cm X 2½ cm X 1½ cm. The deltoid muscle was partially cut. Margins were clean cut and gaping. Bleeding was present.
(vi) Incised wound four inches above the right wrist joint. 5 cm X 1½ cm X 1 cm spindle shaped on the dorsal aspect of forearm. Wound was clean cut. The margins were gaping. The extentesor digitorum, extetesor carpiulnoris and extentesor pollisus longus were partially cut and the bone was exposed on the middle part of the wound and cut was present on the ulna on dorsonediel aspect.
(vii) Abrasion over the chest on left side, streak like 3 cm long reddish in colour.
(viii) Abrasion over the left hand 1 cm X ½ cm reddish in colour."
14. With this Court having on an incisive analysis of the depositions of the eye witnesses to the occurrence besides for the reasons attributed hereinabove concluded that their testimonies are natural then when the invincible and formidable conclusion ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 11 which ensues therefrom is that the oral evidence qua the ill-fated occurrence stands on a sacrosanct evidentiary pedestal, naturally then it carries probative vigor as well as efficacy. Even their oral version qua the incident is meted out corroboration by both MLCs .
Ext.PW.14/B and Ext.PW.7/A prepared and proven respectively by PW.14 and PW.7. Besides with both PW.14 and PW.7 deposing in harmony qua the factum of injuries noticed by each of them in Ext.PW.14/B and Ext.PW.7/A being sequellable by user of of Khukhari Ext.P.1, as also theirs deposing that for the reasons assigned therein, the injuries occurring on the vital portions of rt the bodies of the respective victims of the assault perpetrated on their persons by the accused, are dangerous to life, prods this Court to conclude that given the gravity, enormity and severity of the assault perpetrated on the persons of both PW.9 and PW.6, by the accused with the user by him of a Khukhari, a lethal weapon, renders the aforesaid enormity of the assault perpetrated on their respective persons by the accused to be acquiring an accentuated proportion of gravity besides severity. The factum that the injuries with its user were delivered upon vital portions of the bodies of each of the victims, renders the conclusion drawn by the learned trial Court that the prosecution, hence, has been able to prove the charge against the accused of his having committed an offence punishable under Section 307 IPC qua both PW.9 and PW.6 to be un-amenable to any interference by this Court.
15. The testimonies of PW.6 and PW.9 both eye witnesses to the occurrence and whose testimonies for the ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 12 reasons assigned hereinabove are imbued with tenacious credibility or obviously hence are not got to be discounted by this Court for thereupon also drawing a conclusion that on the ill-fated day a lethal assault was also perpetrated by the accused upon .
deceased Poonam. Therefore, while imputing credibility to the testimonies of the aforesaid eye witnesses to the occurrence, a firm conclusion which is ensuably enjoined to be drawn by this Court is that the accused on the ill-fated day, brutally with the of user by him of Khukhari Ext.P.1 murdered deceased Poonam.
16. The post mortem of deceased Poonam was rt conducted by PW.21. PW.21 has proven the post mortem report Ext.PW.21/A. He has in his deposition pronounced therein the fact that the anti mortem injuries noticed by him to be occurring on the body of deceased Poonam while his subjecting it to post mortem are sequellable by user of Khukhari Ext.P.1.
17. Even though the aforesaid ocular version qua the factum of the accused having caused the gruesome murder of deceased Poonam by his inflicting injuries with Khukhari Ext.P.1 on her person and which injuries stand pronounced in post mortem report, hence, when the ocular version qua the incident stands corroborated by post mortem report comprised in Ext.PW.21/A would render it to command efficacious probative sinew for prodding this Court to on anvil thereof draw a formidable conclusion of the prosecution having proved the charge against the accused of his having committed an offence punishable under Section 302 of the IPC. Nonetheless, with the defence having concerted to exculpate the penally culpable ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 13 liability of the accused by relying upon the exceptions to criminal liability comprised in Section 84 of the Indian penal Code, necessarily then it is imperative for this Court to fathom from the evidence adduced on record, whether the concert of the defence .
in seeking to, while relying upon the provisions of Section 84 of the Indian penal Code while its constituting a tenable exception for exculpation of the penal culpability of the accused, garners any efficacious evidentiary muscle or strength for it to hence to of succeed. Now this Court is beset with the task of pronouncing upon the tenacity of the propagation of the defence that the rt penal culpability of the accused stands exculpated by the factum of his suffering from paranoid schizophrenia as emanable from the testimony of DW.1, hence, concomitantly while his being gripped with the mental disorder aforesaid, he was as such also unaware of the nature of the offence which he committed or besides was also unaware that it was wrong or contrary to law so as to render the aforesaid proven factum of his being unaware of both the nature of the act or that what he was doing is wrong or contrary to law to stand encapsulated besides encompassed within the domain of legal insanity, in marked distinctivity with medical insanity, as propounded in Section 84 of the Indian Penal Code, for the accused to while relying upon it seek his exculpation from penal culpability. Before this Court proceeds to garner from the apposite evidence as exists on record the factum whether the defence has succeeded in espousing legal insanity enshrined in Section 84 of the Indian Penal Code gripping the accused at the relevant time it is incumbent upon this Court to ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 14 before proceeding to dwell upon the tenacity of the said plea espoused by the defence allude to the apt besides the pre- eminent factum as to upon whom the burden to discharge the said onus is cast besides enjoined or mandated by law.
.
Uncontrovertedly not the prosecution rather the defence is commanded or enjoined by law to prove by adduction of efficacious evidence carrying probative vigor, the factum of the accused while labouring under a severe mental disorder or his of being gripped with besides beset with a mental malady at the time contemporaneous to the occurrence, hence was constrained rt to be unaware of both the nature of the act or that what he was doing is wrong or contrary to law. The defence to discharge the burden as cast upon it, by law for succeeding in its espousal that the plea of mental insanity is available to the accused, has relied upon the deposition of DW.1 besides upon the deposition of DW.2. Dr. Virendera Mohan, who stepped into the witness box as DW.1. DW.1 had subjected the accused to medical examination on 18.8.1984, whereupon he concluded that the accused was suffering from paranoid schizophrenia. Though he has proceeded to depose that with the accused being beset with the aforesaid mental malady he is deprived of his cognitive faculties. Nonetheless, when his observations qua the factum of the accused being beset with paranoid schizophrenia stand recorded in Ext.D.1 on 18.8.1984, as also when he subjected the accused to examination on 4.12.1987, yet the examination if any by him of the mental condition of the accused in the years aforesaid may not be relevant to, on such assessment by him qua the mental ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 15 condition of the accused in the years aforesaid, constrains this Court to conclude that the ill-fated occurrence of 24.3.1988 was carried into effect by the accused with his then too being beset with paranoid schizophrenia. More so when DW.1 in his cross .
examination has conceded to the factum of his having not subjected the accused to medical examination in March 1988, besides even if there is a revelation in his deposition of theirs being a possibility of reoccurrence of the aforesaid mental malady of in the accused on the score of his having been beset with the mental disorder aforesaid since 1984 would not facilitate an rt inference from this Court that he had yet not recovered from the mental malady aforesaid especially when there is no evidence forthcoming portraying the factum that since 4.12.1987 till March 1988, the accused had been receiving treatment for enabling him to recuperate from the mental malady aforesaid. For want of evidence unveiling the factum of the accused having received medical treatment subsequent to December, 1987 when DW.1 subjected the accused to medical examination and thereupon his having detected the accused to be beset with paranoid schizophrenia, the invincible conclusion ensuable therefrom is that, hence the accused had recovered from the aforesaid mental malady or that the incident on the ill-fated day was not a sequel to its reoccurrence or resprouting in the accused. Moreso, when there is no apposite evidence comprised in the factum of the accused having been subjected to medical examination at the time contemporaneous to the ill fated occurrence and such ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 16 examination portraying factum of the accused being yet beset with paranoid schizophrenia.
18. Even the testimony of DW.2 is of no avail to the defence to espouse with any iota of success before this Court that .
at the apposite stage or on the ill-fated day the accused while being beset with paranoid schizophrenia deadened his cognitive faculties concomitantly sequelling the effect of, hence his being unaware of the nature of the act or that what he was doing was of wrong or contrary to law so as to bring his penal misdemeanors within the ambit or domain of the exception to penal liability rt constituted under Section 84 of the Indian Penal Code, especially when he did not, immediately prior to the ill-fated day or even at a time in close proximity to or in contemporanity to the ill-fated occurrence, subject the accused to medical examination for empowering him to unearth the factum of the accused being beset with paranoid schizophrenia. Rather as emanable from a reading his testimony, of his having subjected the accused to medical examination in the year 1991 which is a period three years subsequent to the ill-fated occurrence cannot bring the detection, if any by him of the accused then being beset with paranoid schizophrenia, to be either relatable to or being referable to the stage contemporaneous to the ill-fated occurrence, for then giving succor to the propagation by the defence that its detection then has a close nexus with the occurrence which rather took place as distantly as three years prior to its detection.
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19. The medical evidence comprised in the testimonies of DW.1 and DW.2 for the reasons aforesaid when ridden with evidentiary emasculation to prove the factum of the accused at the relevant or the germane stage being gripped with paranoid .
schizophrenia, the evidence comprised in the deposition of PW.13, the officer under whom the accused was serving as an Accountant in the office of the Senior Accountant General, Shimla from 1986 to the earlier part of the year 1988 and its close of reading with incisive circumspection unveiling the factum of PW.13 having not during the tenure of the accused serving under rt him as an Accountant observed in him any noticeable mental abnormality rather his deposition on oath unveiling the factum that both the official behaviour as well as the work performed by the accused was normal, discounts the propagation by the defence that at the time contemporaneous to the ill-fated occurrence the accused was gripped with paranoid schizophrenia. More so, when PW.13 has been categorical in deposing that the accused had worked as an Accountant under him in the office of the Senior Deputy Accountant General, Shimla from the end of the year 1986 to the earlier part of the year 1988, hence, when the aforesaid tenure of rendition of work by the accused under PW.13, is in close proximity to the ill-fated occurrence and when PW.13 has been categorical in his deposition qua the factum of their being no noticable symptoms of the accused while performing duties under him in portrayal of his being beset with any abnormality rather when he has bespoken with clarity the factum that the accused during the period of his rendering duties ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 18 under him as an Accountant, was performing his official work satisfactorily besides his behaviour was normal and which deposition gains momentum especially when it has remained unshred during the course of his having been subjected to cross-
.
examination by the learned counsel for defence, necessarily then it with aplomb foments an apt conclusion that the accused at the time contemporaneous to the ill-fated occurrence was not beset with paranoid schizophrenia.
of
20. Apart therefrom with theirs being an emanation in the testimony of PW.6 the injured eye witness of the accused rt having 2-3 days prior to the incident solicited his services for settling his matrimony with deceased Poonam, which requisition remained unacceded to at his instance, necessarily when the said occurrence in the deposition of PW-6 while having remained unimpeached during his cross-examination hence empowering it to acquire probative tenacity, constrains a conclusion from this Court that the accused was nursing a desire to marry deceased Poonam having developed intimacy with her with his as deposed by PW-9 his being a regular visitor to the house of deceased Poonam while being the class fellow of her younger brother Rakesh, hence may be it appears that when the said offer stood spurned or thwarted by the deceased, he in retribution to avenge his ignominy proceeded in the wee hours of the ill-fated day to the house of the deceased Poonam to murder her in the manner he did. The factum that he had apart from the fact constituted in the hereinabove assigned reasons of his being driven, by his bruised psyche arising from his offer to marry deceased Poonam ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 19 having been spurned by the latter to murder her, outpoured vituperative invectives comprised in the phraseology "Kuti Haramjadi Main Tujhe Chhodunga Nahin Khatam Kar Dunga", as deposed by PW.9 at the deceased when he ingressed the .
premises, which factum of the user by him of the aforesaid invectives when remains unshattered during the cross examination of PW.9, fosters a conclusion that the accused had proceeded from his house to wreak vendetta upon the deceased of Poonam by murdering her as he did by wielding a Khukhari Ext.P.1. The emanation of the aforesaid inference tells upon the rt fact that the accused was scheming besides planning while hence, carrying a mens rea in his mind to commit the murder of deceased Poonam, necessarily when this Court has drawn a conclusion of the accused scheming the murder of deceased Poonam, which inference stands firmly embedded in the evidentiary material adverted to hereinabove, firmly ousts the propagation by the defence that the accused was not aware of the nature of the offence which he committed or besides was unaware that it was wrong or contrary to law so as to bring his act of committing the murder of deceased Poonam besides attempting to commit the murder of injured eye witnesses PW.6 and PW.9 to fall within the ambit of Section 84 of the Indian Penal Code. In sequel, it is held that with the prosecution having proved the factum of the accused nursing a mens rea in his mind to commit the offences for which he stood charged and convicted, hence when the burden of proving the exception to penal liability constituted under Section 84 of the Indian Penal ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 20 Code relied upon by the defence was enjoined to be discharged by the defence, which burden for the reasons aforesaid has remained undischarged, the natural conclusion which ensues is that findings and conclusions recorded by the learned trial Court .
do not necessitate interference.
21. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of the learned of trial Court be sent back forthwith.
( Rajiv Sharma ) Judge.
rt
9th October, 2015. ( Sureshwar Thakur )
™ Judge.
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