Himachal Pradesh High Court
Rohru vs State Of Maharashtra (2002) 7 on 4 May, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF MAY, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.205 of 2019
Between:-
SANGEET KASHYAP ALIAS SUNNY
SON OF SHRI RAMESHWAR KASHYAP,
AGED ABOUT 25 YEARS, R/O VILLAGE
KANEWARA, P.O. KANSAKOTI, TEHSIL
ROHRU, DISTRICT SHIMLA, H.P. ......APPELLANT
(BY MR. P.M. NEGI, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ......RESPONDENT
(BY MR. KAMAL KANT,
DEPUTY ADVOCATE GENERAL)
___________________________________________________
This Appeal coming on for hearing this day, Hon'ble
Ms. Justice Sabina, delivered the following:
JUDGMENT
Appellant had filed the appeal, challenging judgment/order dated 16.4.2019 passed by learned Sessions Judge (Forests), Shimla, Camp at Rohru, whereby, he was convicted and sentenced as follows:-
::: Downloaded on - 24/12/2022 09:17:37 :::CIS 21 302 IPC Imprisonment for life In default of payment of and fine of Rs.50,000/- fine amount, to undergo simple imprisonment for one year.
.
2. 452 IPC Rigorous In default of payment of Imprisonment for five fine amount, to undergo years and fine of simple imprisonment for Rs.20,000/- six months.
3. 427 IPC Rigorous In default of payment of imprisonment for six fine amount, to undergo months and fine of simple imprisonment for Rs.10,000/- one month.
2. Prosecution case, was set in motion, on the basis of the statement of complainant Sheela Devi (PW-1) recorded by the Police. It was the case of complainant Sheela Devi, that she was an agriculturist by profession. She was having common house with Sarjan (brother of her father-in-law). Two rooms and a kitchen were in her possession, whereas, one room and a kitchen were in possessions of Sarjan. On 1.9.2016 at about 3:30 p.m., she was sitting in the courtyard alongwith Sarjan. In the meanwhile, Sangeet Kashyap @ Sunny came to their house while making noise. He went in the kitchen of Sarjan and threw the drum containing flour on the ground and then he picked up a Danda (stick) from the kitchen of Sarjan and ran towards them. Complainant ran towards her courtyard. Sarjan also went in his room out of fear. Sangeet chased Sarjan and started giving beatings to him. Sarjan cried for help.
Thereafter, Sangeet threw the Danda (stick) in the room and came ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 3 to her room and threw her TV on the ground and damaged it. He also threw the apple boxes lying in their courtyard. In the meanwhile, Suman daughter-in-law of Sarjan and her (complainant) .
daughter, Meera Devi returned home after washing clothes.
Sangeet @ Sunny fled away from the spot. When three of them went to the room of Sarjan, they found that he was bleeding from his forehead on account of the injuries suffered by him.
3. On the basis of statement of complainant, formal FIR No.83 dated 1.9.2016 was registered at Police Station, Rohru, District Shimla, under Section 302 of the Indian Penal Code, 1860 (in short "IPC").
4. After completion of investigation and necessary formalities, Challan was presented against the appellant.
5. Charges were framed against the appellant under Sections 452, 427, 302 IPC by the trial Court vide order dated 16.3.2017.
Appellant did not plead guilty to the charges framed against him and claimed trial.
6. In order to prove its case during trial, prosecution examined 17 witnesses. Appellant, when examined under Section 313 of the Code of Criminal Procedure, 1973 (in short "Cr.PC"), after close of prosecution evidence, prayed that he was innocent. He further stated that in fact, he was under treatment of De-Addiction Centre at Palampur, after the suicide of his younger brother. He was under ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 4
depression and was mentally ill. He did not know what had happened on 1.9.2016. Appellant examined two witnesses in his defence.
.
7. Mr. P.M. Negi, learned counsel for the appellant has submitted that the trial Court has erred in ordering conviction and sentence of the appellant with regard to the charges framed against him. In fact, appellant was not mentally sound at the time of incident and in view of the provisions of Section 84 IPC, appellant was liable to be r to acquitted of the charges framed against him. From the evidence on record, the fact that the appellant was not mentally sound, at the time of incident, could be duly gathered. Learned counsel has further submitted that the witnesses examined by the prosecution have also stated that the appellant was a 'Sanki' type of person.
Learned counsel has further submitted that the appellant had no motive to commit the offence. Appellant had no enmity against the deceased. Learned counsel has further submitted that assuming that the appellant had committed any offence, then at the most, it would fall within the ambit of Section 304-II IPC and not under Section 302 IPC.
8. In support of his contentions, learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Supreme Court in Shrikant Anandrao Bhosle vs. State of Maharashtra (2002) 7 SCC 748, wherein it has been held as under:-
::: Downloaded on - 24/12/2022 09:17:37 :::CIS 5"20. Mr. Arun Pednekar relies upon Sheralli Wali Mohammed v. The State of Maharashtra to contend that mere fact that the appellant did not make any attempt to run away or that he committed the crime in day light and .
did not try to hide it or that motive to kill his wife was very weak, would not indicate that at the time of commission of the act the appellant was suffering from unsoundness of mind or he did not have requisite means rea for the commission of the offence. It is correct that these facts itself would not indicate insanity.
In the present case, however, it is not only the aforesaid facts but it is the totality of the circumstances seen in the light of the evidence on record to prove that the appellant was suffering from paranoid schizophrenia.
The unsoundness of mind before and after incident is a relevant fact. From the circumstance of the case clearly an inference can be reasonably drawn that the appellant was under a delusion at the relevant time. He was under an attack of the ailment. The anger theory on which reliance has been placed is not ruled out under schizophrenia attack. Having regard to the nature of burden on the appellant, we are of the view that the appellant has proved the existence of circumstances as required by section 105 of the Evidence Act so as to get benefit of section 84 IPC. We are unable to hold that the crime was committed as a result of extreme fit of anger. There is a reasonable doubt that at the time of commission of the crime the appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus he is entitled to the benefit of section ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 6 84 IPC. Hence, the conviction and sentence of the appellant cannot be sustained.
9. Learned counsel has also placed reliance on the decision of .
the Hon'ble Supreme Court in Vidhya Devi vs. State of Rajasthan, 2004 CRI.L.J.2332, wherein it was held as under:-
"40. When a plea of insanity is set up by the accused, the burden of proof is on him to prove it. But a man, who is insane will not be able to defend himself properly and effectively. It is, therefore, the duty of the Court to look after the defence of the accused in the light of the evidence on record."
10. Learned counsel has also placed reliance on the decision of the Hon'ble Supreme Court in Nanhak Ram vs. State of Bihar, 2006 Crimes (2) Patna 453, wherein it has been held as under:-
"12. Though there is no burden cast on the prosecution to establish negatively that the accused was not of unsound mind when he committed the acts of violence resulting in the death of the person or persons murdered, yet in the circumstances of the instant case where the prosecution story as disclosed by the informant (P.W. 6) itself indicates that right from four days before the occurrence the appellant Nanhak used to behave like mad, had attempted to assault one Ram Shakal Singh Bhardul Singh with bhala, entering into house of one Ugam Ram in the night had scattered his clothes, boxes etc., day before yesterday, i.e., on 16.4.86 iron chain was put in the hands of appellant and appellant had managed to take out his right hand from ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 7 the chain and after the alleged occurrence the appellant was not only chained but also assaulted by people resulting hurt to him, fairness in investigation does requires probing into this aspect with an unbiased .
approach particularly when the accused himself cannot in the very nature of things asset in unraveling the necessary facts being in custody and may be being mentally imbalanced. Therefore, it becomes obligatory on the part of the investigating agency, particularly when the accused is apprehended at about the time of the commission of the offence or shortly thereafter, to subject the accused to medical examination, at least to ensure itself that the accused was in fact a person of ordinary state of mind. If that is done, it necessarily rules out the possibility of the accused having committed the acts of violence attributed to him on account of mental disease or lunacy. The prosecution must place all such materials that could possibly be had. The failure to subject the accused to such medical examination immediately and to place all evidence that could be available may have, depending on facts and circumstances of a case, a serious consequence on the prosecution case. When such plea of insanity is raised by the accused at the trial, as that may give rise to a doubt whether the act or acts of violence were committed with the requisite intention of committing a particular offence and any such failure on the part of the prosecution to collect the evidence and place before the Court on the mental aspect of the accused, creates serious infirmity in the case of the prosecution and ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 8 consequently the benefit of doubt will nay to be given to the accused."
11. Learned counsel has also placed reliance upon the decision of .
the Hon'ble Supreme Court in Ratan Lal vs. State of M.P. 1970 (3) SCC 533, wherein it was held as under:-
"14. We are inclined to agree with the conclusion arrived at by the learned Magistrate. We hold that the appellant has discharged the burden. There is no reason why the evidence of Shyam Lal, D.W. 1, and Than Singh, D.W. 2, should not be believed. It is true that they are relations of the appellant, but it is the relation who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning of Section 84 Indian Penal Code."
12. Learned counsel has also placed reliance upon the decision of the Hon'ble Supreme Court in Nandlal vs. The State of Maharashtra (2019) AIR (SC) 1520, wherein it was held as under:-
"15. In the Judgment cited by Mr. Nishant Ramakantrao Katneshwarkar, learned counsel appearing for the respondent-State in Criminal Appeal Nos.286-288 of 2019, Asif Khan v. State of Maharashtra and Another dated 05.03.2019, the accused thereon went away from the scene of occurrence on the motorcycle and he came back after ten to fifteen minutes and then attached the ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 9 deceased and in such facts and circumstances, it was held that both are two different incidents. The facts of the case in hand stand on a different footing. The deceased abused the appellant who got annoyed and .
first attacked Lakhichand and on seeing this, Gopichand gave a stick blow on the head of the appellant and thereafter, the appellant went to his house situated next door and came back with a gupti. Inflicting injury on the deceased is part of the same incident and cannot be said to be a different part to hold that the act was premeditated and intentional. As rightly contended by learned counsel for the appellant, the incident was in a sudden quarrel and there was no premeditation. One of the conditions of Exception 4 is that the offender ought not to have taken the "undue advantage" or acted in a cruel or unusual manner. The appellant inflicted a single blow injury with gupti on the left armpit which pierced through the upper end of the left arm and then entered the chest causing fracture of fourth rib and reached till the lung causing rupture of left lung vasculature.
Though, the gupti was a dangerous weapon, the appellant-accused caused a single injury which pierced into the lung. Having sustained a stick blow from Gopichand-PW-1, in the sudden quarrel and in the heat of passion, the appellant inflicted the injury on deceased Lakhichand. Considering the facts and circumstances of the case, in our view, the case falls within Exception 4 to Section 300 IPC. The conviction of the appellant- accused under Section 302 IPC is liable to be modified as Section 304 II IPC."::: Downloaded on - 24/12/2022 09:17:37 :::CIS 10
13. Mr. Kamal Kant, learned Deputy Advocate General, on the other hand, has submitted that the present case rests on eye witness account. The statement of PW-1 (Smt. Sheela Devi) inspires .
confidence. The testimony of PW-1 (Sheela Devi) was duly corroborated by medical as well as expert evidence.
14. Present case relates to murder of Sarjan. Case rests on eye witness account.
15. PW-1 (Sheela Devi) while appearing in the witness box has duly supported the prosecution case.
16. PW-2 (Jaggar Pal) is the husband of PW-1 (Sheela Devi) and PW-3 (Balwan Singh) is the son of the deceased. Both the said witnesses have deposed that they had come to know from PW-1 that Sarjan had been murdered by the appellant.
17. PW-5 (Suman) has deposed to the effect that on 1.9.2016, when she returned home at about 3:45 p.m., after washing the clothes, she heard cries of her sister-in-law (Sheela Devi) and she heard her saying that Sangeet @ Sunny had killed her father-in-law.
When she reached the courtyard she saw that the appellant was running away from the Varandah towards the roadside. On seeing her and Meera Devi, appellant had fled away from the spot. Then, she went inside the room of Sarjan and found that he was lying dead in a pool of blood. She also deposed that TV kept in the room of her ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 11 father-in-law was damaged. TV kept in the room of Sheela Devi was also damaged and apple boxes were also damaged.
18. PW-6 (Dr. Naresh) has deposed that on 2.9.2016, he had .
conducted postmortem examination on the body of the deceased Sarjan aged about 80 years and has found following injuries on his body:-
"wounds, bruises, position:- (1) Lacerated wound of size 8x3 cm with irregular edges along with clotted blood around margins of wound, extending from right frontal region downward along lateral border of right eye up to right mendibular region. Communitted fracture of underlying frontal bone and mandible on right side.
Subdural hematoma present in the right frontal region.
2) Lacerated wound of size 5x2 cm at centre of forehead extending toward root of nose, communitted fracture of nasal bone.
3) Lacerated wound of size 7x3 cm involving left parieto-temporal region, with irregular edges and clotted blood present over wound margins.
4) Lacerated wound of size 4x3 cm present over right side of chin with irregular edged and clotted blood over margins.
5. Lacerated wound of size 2x1 cm over ring finger of left hand with irregular edges.
... There was surrounding tissue reaction in all above mentioned injuries."
19. PW-6 further deposed that in his opinion, the deceased had died as a result of head injury leading to cardio-respiratory arrest.
::: Downloaded on - 24/12/2022 09:17:37 :::CIS 12He further deposed that after examination, the opinion given by him in postmortem report (Ex.PW6/B) remained the same. Injuries mentioned in the postmortem report could be caused with Danda .
(stick). He also deposed that the time between injuries and death was instantaneous.
20. Ex.PW14/A is the report of Forensic Science Laboratory. A perusal of the said report reveals that identical DNA profile was obtained from wooden stick, pants and T-shirt of the appellant and
21.
r to the same matched with DNA profile obtained from blood sample of deceased Sarjan.
In the present case, the testimony of PW-1 (Sheela Devi), who had witnessed the incident in question, inspires confidence.
Statement of the said witness is natural and she has withstood the test of cross-examination with regard to the manner of incident. The statement of PW-1 is corroborated by medical evidence.
22. Appellant, when examined under Section 313 Cr.PC, has also not denied the incident, but has taken up the plea that he was under
depression and was mentally ill. He further pleaded that he has been taking treatment from De-Addiction Centre at Palampur, after the suicide of his younger brother. He did not know what had happened on 1.9.2016. In order to establish his plea, appellant has examined DW-1 (Sanjeev Kumar) and DW-2 (D.N. Sharma).::: Downloaded on - 24/12/2022 09:17:37 :::CIS 13
23. DW-1 (Sanjeev Kumar) has deposed that he knew the appellant. Younger brother of the appellant had committed suicide.
Appellant was a student of B.Tech. Appellant was mentally .
disturbed and had been taken to Palampur Rehabilitation Centre for treatment. On 1.9.2016, he came to know that a quarrel had taken place in village Kanewara. Thereafter, he went to the house of the appellant and found that appellant was present in his house and was listening to songs on his laptop. Appellant appeared to be disturbed.
In the meanwhile, Police came to the house of the appellant and arrested him. The house of appellant was at a distance of 20 kilometers from his house. In his cross-examination, he admitted that appellant was his nephew (sister's son).
24. Thus, so far as DW-1 (Sanjeev Kumar) is concerned, he was the maternal uncle of the appellant and has apparently deposed in favour of the appellant on account of his relationship. Testimony of DW-1 (Sanjeev Kumar) fails to rebut the testimony of PW-1 (Sheela Devi) with regard to the incident in question. Hence, we are of the opinion that no reliance can be placed on the testimony of DW-1.
25. DW-2 (D.N. Sharma), deposed that he was working as Coordinator in Drug De-Addiction Centre, Palampur. Appellant had remained under treatment in the Drug De-Addiction Centre w.e.f.
12.11.2014 to 23.12.2014. Appellant was Charas and medicines addict. Appellant remained in the Centre for 41 days and due to his ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 14 family circumstances, he was taken back by his family members.
The patient had not been completely cured and had been only detoxified. In his cross-examination, he admitted that he had joined .
the Centre only in the year, 2016 and had not examined the patient.
He did not know if the appellant was not a drug addict on 1.9.2016.
This witness proved Certificate (Ex.DW2/A).
26. A perusal of Certificate (Ex.DW2/A) reveals that the appellant had remained under treatment in the Drug De-Addiction Centre, Palampur w.e.f. 12.11.2014 to 23.12.2014. However, the incident in question had taken place on 1.9.2016. There is nothing on record to suggest that the appellant was still under treatment in any Drug De-
Addiction Centre. Thus, testimony of DW-2 and Certificate (Ex.DW2/A) fail to advance the case of the appellant.
27. Appellant has tried to draw the benefit of the provisions of Section 84 IPC.
28. Section 84 IPC reads as under:-
"Act of a person of unsound mind.--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."
29. Thus, as per the above provision, in case a person is of unsound mind, then it leads inference to the fact that he was incapable of knowing the nature of act committed by him.
::: Downloaded on - 24/12/2022 09:17:37 :::CIS 1530. However, in the present case, the mere fact that no motive or enmity was proved as to why appellant had murdered the deceased and had left the weapon of offence at the spot, would not in itself, .
indicate that he was insane or that he did not have the necessary mens rea for the commission of offence. There is no medical evidence on record to establish the fact that the appellant was of unsound mind at the time of incident. It is not even the plea of the appellant that he was of unsound mind at the time of incident, when examined under Section 313 Cr.PC, rather, it was the plea of the appellant that he was under depression and due to this reason he was mentally ill at the time of incident as his younger brother had committed suicide.
31. Sections 85 and 86 IPC read as under:-
"85. Act of a person incapable of judgment by reason of intoxication caused against his will.--
Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.-- In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 16 to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will."
.
32. Thus, as per above provisions, where an act was committed by a person under intoxication which was administered to him without his knowledge or against his will, the said act would not amount to an offence. However, voluntary intoxication is no excuse for commission of a crime. Moreover, in the present case, the only evidence available on record is that in November/December, 2014, appellant had remained admitted in Drug De-Addiction Centre/Rehabilitation Centre, Palampur for treatment, but there is no material on record to establish the fact that on the day of incident, appellant was under any kind of intoxication which had been administered to him against his will or without his knowledge.
Rather, from the testimony of PW-1 (Sheela Devi), it is evident that the appellant had come to the spot and had inflicted injuries to the deceased with the help of Danda (stick). Deceased had suffered head injuries and had died on account of the said injuries.
33. As per the medical evidence, deceased had suffered three injuries on his head, one injury on his right side of chin and one injury on his ring finger of left hand. Hence, in the present case, it cannot be said that the act committed by the appellant would fall ::: Downloaded on - 24/12/2022 09:17:37 :::CIS 17 within the ambit of Section 304-II IPC. The fact that repeated blows had been given by the appellant on the head of the deceased leads to the inference that the appellant had the intention to commit the .
murder of the deceased. The blows had been given to the deceased, who was aged about 80 years, with such force that he instantaneously died. It is not a case where on the spur of the moment only one blow had been given to the deceased. Rather, repeated blows with such force had been given to the deceased by the appellant that he immediately died on the receipt of the blows.
34. We have carefully gone through the judgments relied upon by the learned counsel for the appellant, but the same fail to advance the case of the appellant as they are based on different facts.
35. So far as Shrikant Anandrao Bhosale's case (supra) is concerned, in the said case, there was material on record to establish that the accused was suffering from paranoid schizophrenia and had a family history of psychiatric illness.
36. So far as Vidhya Devi's case (supra) is concerned, in the said case also, there was material on record to establish that the accused was suffering from schizophrenia.
37. So far as Nanhak Ram's case (supra) is concerned, in the said also, it was established on record that the accused had history of lunacy and his mental condition was not normal from four days before the incident in question.
::: Downloaded on - 24/12/2022 09:17:37 :::CIS 1838. So far as Ratan Lal's case (supra) is concerned, in the said case also, there was medical evidence to establish the fact that the accused was a person of unsound mind.
.
39. So far as Nand Lal's case (supra) is concerned, in the said case, the accused had inflicted single blow to the deceased in the heat of passion and the same had resulted in the death of the deceased. However, in the present case, repeated blows had been given to the deceased.
40. Although, in the present case, prosecution has failed to establish that the appellant had any enmity against the deceased and has also failed to establish that the appellant had any motive to commit the murder of the deceased, but from the testimony of PW-1 (Sheela Devi), it duly stands established that at the time of incident, appellant had inflicted injuries on the person of the deceased with an intention to commit his murder. The deceased had suffered three injuries on his head and as per medical evidence, the deceased had died on account of head injuries suffered by him.
41. There is no evidence to show that the appellant was insane at the time of commission of offence and also there is nothing to indicate that he did not have the necessary mens rea when he committed the offence. Appellant was a student of B. Tech. and had attained the age of discretion. Appellant would be presumed to be sane unless the contrary was established.
::: Downloaded on - 24/12/2022 09:17:37 :::CIS 1942. After considering the totality of the circumstance, we are of the opinion that the trial Court had rightly ordered the conviction and sentence of the appellant with regard to the charges framed against .
him.
43. Hence, no ground for interference is made out. Consequently, the appeal is dismissed. The impugned judgment/order dated 16.4.2019, passed by the trial Court, are upheld.
Pending miscellaneous application(s), if any, shall also stand disposed of.
r to ( Sabina )
Judge
( Satyen Vaidya)
Judge
May 4, 2022 (ks)
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