Des Raj vs State Of J&K on 18 November, 2022

[Cites 25, Cited by 0]

Jammu & Kashmir High Court

Des Raj vs State Of J&K on 18 November, 2022

1. Shivers run down the spine to know that lust of property drove a father to kill his innocent four months old suckling baby after killing his unarmed father-in-law. Instant judgment is proposed to give quietus to the present appeal hanging fire for more than 10 years.

2. This Criminal Appeal has been directed against the judgment of conviction and the sentence order dated 28.09.2012 passed by learned Sessions Judge, Udhampur (hereinafter referred to as 'trial court') in case titled „State Vs. Des Raj‟ in file No.32/Sessions, arising out of FIR No.50/2002 of Police Station Chenani, vide which the appellant has been convicted for the commission of offences under Sections 302/307 of the Ranbir Penal Code 1989 ('RPC' for short) and sentenced to undergo rigorous imprisonment for 2 CRA No.9900004/2012 a/w CONF No. 22 of 2012 life and fine of Rs.10,000/- for offence under Section 302 RPC and rigorous imprisonment of five years and fine of Rs.2,000/- for offence under Section 307 RPC and on default of payment of fine, the appellant has been awarded two months imprisonment with further direction that both the sentences shall run concurrently.

3. Shorn of verbosity, case of the prosecution, as it emerges from the record, is that Police Station Chenani, District Udhampur, on 19.08.2002 at about 7 a.m., received a source information that appellant was living as live in son-in-law in the house of his father-in-law deceased-Kamlu and on 18.08.2002 at about 10.30 p.m., he picked up quarrel with his father in law with an intention to grab his property and attacked his father in law with sickle in furtherance of intention to kill him. The appellant repeatedly attacked his father in law and killed him on the spot. Thereafter appellant also attacked his four months old baby namely Tiblu with the sickle and killed him as well. The family members of the deceased, when tried to intervene, were also attacked and sustained injuries. On the receipt of information, the police agency swung into action, registered a case for the commission of offences under Sections 302/307 RPC and investigation came into vogue. During investigation, dead bodies of both the deceased were shifted to the hospital, photographs were taken, samples of soil, blood stained soil, blood stained clothes of the deceased were obtained, seized and sealed on the spot. The accused was arrested and the weapon of offence was recovered at his instance. Postmortem reports of the deceased were also obtained.

4. It surfaced during investigation that appellant was married to the only daughter of deceased Kamlu for the last 9 years and since then he was 3 CRA No.9900004/2012 a/w CONF No. 22 of 2012 putting up as a live in son-in-law in the house of his in laws. It revealed that appellant used to compel his father in law, deceased-Kamlu, to transfer his property in his name, which resulted in the quarrel between the duo and the appellant finally attacked his father-in-law and four months old baby with a sickle one after another, killing them on the spot and fled away. The mother-in-law of the appellant tried to intervene but she was also attacked by the appellant and she sustained injuries. After culmination of the investigation, the involvement of the appellant for the alleged commission of offences under Sections 302/307 RPC was established and final report under Section 173 Cr.P.C. was filed against him.

5. The appellant was charged for the commission of offences under Sections 302/307 RPC and pursuant to his pleading not guilty, prosecution was directed to lead evidence and prosecution examined thirteen witnesses.

6. The appellant denied the incriminating evidence against him in his statement under Section 342 Cr.P.C. (corresponding to Section 313 of the Code of Criminal Procedure, 1973 i.e. Central Cr.P.C.) and examined two witnesses in defence.

7. Learned Trial Court on appreciation of the evidence on record and having due regard to the law governing the field, concluded that appellant was guilty of the commission of murder of his father-in-law and six months old son in a cold blooded manner and consequently convicted and sentenced the appellant as afore stated.

8. The appellant has assailed the impugned judgment of conviction and sentence on the predominant premise that he was insane at the time of commission of the alleged offence. According to the appellant, the defence evidence adduced by him clearly established that he was suffering from 4 CRA No.9900004/2012 a/w CONF No. 22 of 2012 insanity/ mental ailment prior to the alleged occurrence and he was hospitalized during the trial as well.

9. The appellant has also questioned the impugned judgment of conviction and sentence on the ground that learned trial court has failed to appreciate the evidence in the right perspective as there are serious contradictions in the prosecution evidence and all the eye witnesses are either related or interested witnesses.

10. According to the appellant, the prosecution also failed to prove the disclosure statement and consequent recovery of the weapon of offence and that Akas (Figure) of the weapon of offence drawn by the police differs from the weapon of offence shown in the Court.

11. Having heard the rival contentions, we have given our thoughtful consideration to the facts and circumstances attending the present case as also the law governing the field. We have also gone through the written arguments filed by learned counsel for the appellant.

12. Mr. Anmol Sharma, learned counsel for the appellant, has reiterated the grounds urged in the memo of appeal to submit that there is sufficient material on the record to prove that appellant at the time of alleged commission of offence was insane and since the proof required to prove the insanity of an accused is not as strict as the burden of the prosecution to prove its case beyond reasonable doubt, the appellant is entitled to be acquitted of the charges. Mr. Sharma has also maintained that failure on the part of the respondents to prove the alleged disclosure and consequent recovery of the weapon of offence goes to the root of the entire case. Learned counsel for the appellant has relied upon Surendra Mishra Vs. State of Jharkhand reported as (2011) 1 Supreme 89.

5 CRA No.9900004/2012 a/w

CONF No. 22 of 2012

13. Ex adverso, Mr. R. S. Jamwal, learned AAG, vehemently argued that appellant has been convicted by learned trial court on the basis of direct evidence against him and the prosecution case cannot be thrown overboard merely on the ground that prosecution witnesses are related witnesses and since the appellant failed to shake the credibility of the prosecution witnesses in the trial court, the present appeal is liable to be dismissed and the conviction and sentence are liable to be maintained.

14. In order to appreciate the controversy, it shall be appropriate to give a brief resume of the prosecution evidence, which runs as below:

15. PW Kamal Dai is the widow of deceased-Kamlu, maternal grandmother of deceased-Tiblu and mother-in-law of the accused. She has stated that accused was married to her only daughter about nine years ago and the couple was blessed with two sons and two daughters. Accused started living in their house after marriage and was looking after their landed property. An year before the occurrence the accused started demanding the property from his father-in-law, who would try to convince him that the entire property belonged to him because he was the only heir after his death but the accused was not ready to buy the advice of his father in law. 4-5 days ago, the accused again raised the same issue and on the day of occurrence he again demanded the property from his father in law, who summoned some respectable persons of the locality including Dhani Ram, Des Raj and Dina. At about 5 p.m., they came to her house and tried to make the accused understand that he should not quarrel with his father-in- law and told him that his father-in-law would transfer half of his landed property immediately but accused was not satisfied, left home and went towards rear side of the house. It was dark. Deceased- Kamlu rushed after 6 CRA No.9900004/2012 a/w CONF No. 22 of 2012 him to persuade that he was ready to transfer entire property in his name. She also went after him with a Mashal (an artificial light) in her hand and others followed her. The accused was having a sickle in his hand and he inflicted 7 to 8 repeated blows of sickle on the head of Kamlu one after another. She entreated the accused to desist from doing so, but she was also attacked on her head and it started bleeding. People had gathered on the spot and they were watching the occurrence. Deceased (Kamlu) died on the spot. The people present on spot tried to catch hold of the accused but he managed to escape along with sickle. The accused went inside the house and inflicted blows of sickle on the belly of his six months old baby. It started bleeding and the child too died on the spot. The accused fled away towards the maize field along with weapon of offence. The police came to the spot next day and recorded her statement. The accused was mentally fit. She has also identified the weapon of offence in the open court. On cross-examination, the witness has deposed that relationship of the accused with his wife was cordial. The accused was looking after their entire landed property. Dhani Ram and Dina are her brothers and they were living in the close vicinity of her house. The accused started making demand for property for the last one year and his demand persisted till the date of occurrence. When she reached the scene of occurrence it was dark and she saw that accused was attacking the deceased-Kamlu with a sickle. Accused was never mentally ill. She has no knowledge whether accused even visited the hospital for treatment. She had seen the accused attacking his son also and he gave four blows, two each from the blunt and sharp side of the weapon of offence.

7 CRA No.9900004/2012 a/w

CONF No. 22 of 2012

16. PW Darshna Devi is wife of the appellant. She has stated that accused was married to her for the last nine years and was living in her parental house as live-in son-in-law. They had two sons and two daughters and their relations were cordial. The accused started demanding the landed property. Her late father used to tell him that the entire property belonged to him. 5-7 days before the occurrence, accused again raised the demand for transfer of the landed property. Deceased-Kamlu agreed to transfer half of his landed property in his name but accused was not satisfied as he wanted the transfer of entire property in his name. On the day of occurrence, the accused did not have meals in protest and repeated his demand of transfer of property to him. Deceased-Kamlu called Dhani Ram, Dina and Des Raj to persuade the accused to live peacefully. At about 10.30 p.m. the accused, who was not satisfied with the persuasion of the said persons, left the house. Deceased-Kamlu ran after him and told him that he was ready to transfer his entire property in his name. She and her maternal uncles went after them with mashals in their hands but the accused inflicted 5-7 blows of sickle on the head of her father. Her father fell down and accused inflicted blows of sickle on her mother also when she tried to intervene. Thereafter accused came inside the house and inflicted four blows of sickle in the belly of their son, who was sleeping on a cot. The child died on the spot and she fell unconscious. Police came to the spot on the next day and she made same statement to the police. She has identified the weapon of offence i.e. sickle in the open court. The accused is mentally sound. In cross examination, she has deposed that it was cloudy and dark at the time of occurrence and accused had made the attack taking advantage of the dark and they witnessed the occurrence in 8 CRA No.9900004/2012 a/w CONF No. 22 of 2012 the light of mashal. The accused was hospitalized in Jammu for one year. The accused was not suffering from Epilepsy.

17. PW Des Raj has deposed that deceased-Kamlu was his uncle and he was killed by his son-in-law, the accused. The only daughter of deceased- Kamlu was married to the accused. Accused was demanding the property of his father-in-law, who used to tell him that the entire property belonged to him so there was no need of transfer of property. On 18.08.2002, deceased-Kamlu came to his house in the evening and told him that accused was forcing him to transfer his land in his name and he was asked to persuade him. He went to the house of the deceased along with Dina and Dhani Ram. They made the accused to understand that after the death of Kamlu, the entire property would go to him. The accused went outside. Deceased- Kamlu went after him. It was 9.30 p.m. Immediately thereafter, they heard the noise. He along with PWs Kamal Dai & Darshna rushed out with Mashals in their hands and they saw the accused from a distance of 10 to 12 feet inflicting blows of sickle on deceased-Kamlu. Kamlu fell down. They tried to intervene but since accused was having weapon in his hand, they did not go near. Mother in law of the accused tried to rescue her husband, but she was also attacked by the accused with the sickle and she sustained injuries. Thereafter accused went inside the house and attacked his six months old baby, who was sleeping. Kamlu died on the spot. After killing his son, accused ran to the maize field. Next morning a verbal report was lodged in Police Station Chenani. Police came to the spot. 4-5 days after, the accused was arrested from the maize field and weapon of offence was recovered from the roof top of his house at the instance of the accused. In cross examination, he has denied the 9 CRA No.9900004/2012 a/w CONF No. 22 of 2012 suggestion that he reached the spot after the occurrence was over. He has admitted that there is no mention of 'mashal' in his statement recorded under Section 161 Cr.P.C. He goes on to depose that the accused was never hospitalized for any treatment to his knowledge nor he had any sign of mental ailment. Accused was doing his household work. About 100 people including Numberdar and Chowkidar had assembled on the spot. He could not say whether accused committed the crime in a fit of mental illness or not.

18. PW Dhani Ram has deposed that deceased Kamlu was his brother in law and accused was live-in son-in-law of deceased Kamlu and was living in his house for about nine years. Accused was demanding the transfer of property from Kamlu in his name, who told him that the entire property would go to him after his death so there was no need to transfer the property. Kamlu asked them to make the accused understand. On the day of occurrence, Kamlu summoned him in his house. Dina and Des Raj were also there. At about 8-9 p.m., late Kamlu offered to transfer half of his landed property in the name of accused. At this accused walked out. Kamlu went after him and told the accused that he could have his entire landed property but accused started inflicting blows of sickle on Kamlu. They had seen the accused attacking the deceased with sickle in the light of Mashal. His sister Kamal Dai, wife of the deceased, tried to rescue the deceased but she was also attacked by the accused with sickle. Thereafter accused went inside and inflicted blows of sickle in the abdomen of his six months old son and the child died on the spot. Thereafter accused fled to the maize field. Next morning Des Raj and others informed the police. In cross examination, he has deposed that there was no electricity at the time 10 CRA No.9900004/2012 a/w CONF No. 22 of 2012 of occurrence. The accused killed the deceased at a distance of 10 feet from his house. Accused did not attack the deceased in the fit of madness. He has reflected his ignorance that whether accused was ever hospitalized at Jammu or not. Accused was arrested three days after occurrence from the maize field.

19. PW Zalim Singh is witness to the handing over of seal marked-P to him in view of EXPW-25.

20. PW Mehndi is brother of deceased-Kamlu, to whom dead bodies of both deceased persons were handed over for last rites. He has admitted the receipt EXPW-M.

21. PW Gouri Dutt is also witness to the receipt of seal through superdnama EXPW-ZX.

22. PW Dr. Mohd Yaseen conducted autopsy on the dead bodies of deceased Kamlu and Tiblu. On examination of dead body of deceased-Kamlu, he has found following injuries:-

1. The deceased was of 55 years of age. There was lacerated wound over it. Temporal and parietal region, skull bones of the same region fractured exposing brain matter. Left ear also chopped.

2. Lacerated wound over left side of occipital region with fracture of underlying bone exposing brain matter.

3. Lacerated wound over both hands.

4. Stab wound in left lumber region. 3 Nos about 5"x2 cm deep, stab wound on left shoulder, 2" x 2" deep.

There was bleeding from internal ears whereas left external ear chopped. Bleeding from both nostrils. Bleeding from mouth also. In our opinion, the deceased had died due to injuries to vital organs of the body, resulting in shock, cardio respiratory failure and finally death. The injuries were sufficient in ordinary course of nature to cause the death of the deceased. The injuries were of brutal nature and fatal."

23. He has admitted the postmortem report EXPW-MY.

11 CRA No.9900004/2012 a/w

CONF No. 22 of 2012

24. On the same day, he conducted postmortem of deceased-Tiblu and found following injuries:-

1. Multiple penetrated stab wounds over upper abdomen and chest, resulting in injuries to both lungs and rupture of liver.

2. Incised wounds over both thighs two in each thigh, 2cm x 0.5 cm deep.

In our opinion, cause of death of the deceased was due to the injuries to the vital organs of the body resulting in shock cardio respiratory failure and finally death."

25. He has admitted post mortem report EXPWMY/I.

26. On 29.09.2002 the weapon of offence i.e. sickle was produced before him and on examination of the weapon of offence, he opined that injuries mentioned in the post mortem report could be possible by the said weapon of offence. He has admitted the certificate EXPWMY/II in this regard. He has also admitted the Farad Surat Hal EXPWMY/III and EXPWMY/IV regarding both the deceased. In cross examination, he has clarified that in both the cases, the weapon of offence had been used.

27. PW Durga though turned hostile regarding the alleged disclosure made by the accused and the consequent recovery thereto, but he has admitted that the weapon of offence was lying on the spot. He is also witness to the taking over of the dead bodies by the police vide memos EXPW-D and EXPW-D/I. He is also witness to the seizure memo EXPW-D/II of the ordinary soil and EXPW-D/III of the blood stained soil as also seizure memos of the blood samples of the deceased Kamlu EXPW-D/IV and seizure memo of his clothes EXPW-D/V. He is also witness to the seizure memo of blood samples of deceased-Tiblu and his clothes EXPW-D/VI and EXPW-D/VII. The cot on which deceased Tiblu was asleep at the 12 CRA No.9900004/2012 a/w CONF No. 22 of 2012 time of occurrence was also seized in his presence. He has admitted the seizure PXPW-D/VIII.

28. PW Charanjit Singh is witness to the photographs of both deceased marked EXP.1 to EXP.9.

29. PW Pawan Khajuria is the investigating officer. He received source information on 19.08.2002 that accused had killed his father in law and son with a sickle. He has admitted FIR EXPW-PK registered by him. During investigation he has recorded statements of the prosecution witnesses and completed all legal formalities including taking possession of the dead bodies of deceased persons, collecting samples of ordinary soil, blood stained soil, blood samples of deceased persons, seizure of the clothes of the deceased persons and is also witness to the disclosure statement made by the accused and the consequent recovery of weapon of offence at the instance of the accused. He has deposed that it revealed during investigation that the only daughter of Kamlu was married to the accused and the accused was living as his live-in son-in-law for the last about nine years. The accused demanded the transfer of the landed property in his name. 4-5 days before the occurrence some quarrel took place between accused and deceased-Kamlu and accused refused to have meals till his demand was met. Offences under Sections 302/307 RPC were established against the accused. On cross examination, he has stated that accused was arrested on 23.08.2002 from a maize field and accused was subjected to medical examination on 24.08.2002. He has stated that it did not surface in his investigation that accused at the time of occurrence or before occurrence was suffering from any mental ailment. He had never sent the accused to any hospital during investigation for 13 CRA No.9900004/2012 a/w CONF No. 22 of 2012 treatment. He has denied the suggestion that accused was ever hospitalized for the treatment of mental ailment before occurrence. The accused had hidden the weapon of offence in the forest.

30. PW Balbir Singh has admitted the contents of superdnama of the seal EXPW-ZS.

31. PW Krishan Butt has prepared the sketch map EXPW-KB of the place of occurrence and admitted the same.

32. This is the crux of the prosecution evidence. Since the accused denied the incriminating evidence against him, in his statement under Section 342 Cr.P.C. (corresponding to Section 313 of the Central Code), he preferred to enter the defense and examined the following witnesses:-

33. DW Mohan Lal though stated that accused was living in his parental home, never lived in the house of his in-laws; and that he lost his mental balance in 2002 and was taken to Jammu Hospital for treatment of his mental ailment, but he has admitted in his cross-examination that since place of occurrence is 3 kilometers away from his house, therefore, he could not say whether accused during those days was living with his in- laws or not and that he had not gone to the place of occurrence.

34. DW Dr. Suresh Kumar, Registrar Psychiatric Disease Hospital GMC Jammu, has produced the OPD Register of the year 2000 and admitted that as per the OPD Register No.47463/2000 accused visited the said hospital as OPD patient on 08.06.2000 and he also visited the hospital thereafter for follow up treatment. However, he has clarified that on the basis of these two entries, it was not possible to say that accused had visited the hospital for what treatment and what treatment was given to him, as no record is maintained as regards OPD patient. He furnished 14 CRA No.9900004/2012 a/w CONF No. 22 of 2012 similar information to the Superintendent, Psychiatric Disease Hospital GMC Jammu, through Ext.D-2.

35. This culminates the defence evidence.

36. Before we proceed to appreciate the prosecution evidence, it shall be apt to briefly recall the prosecution case, though at the cost of brevity.

37. The prosecution case is that the only daughter of deceased-Kamlu was married to the appellant about nine years ago, who after marriage started living in the house of his in-laws as live-in son-in-law. As per the prosecution case, the appellant not only cultivated the landed property of his in-laws, but was living a peaceful matrimonial life until he was struck by the greed of property an year before the occurrence.

38. As the prosecution case would unfurl the appellant started demanding transfer of landed property in his name and he was told by his father in- law, deceased- Kamlu, that he being the only heir would be entitled to the whole property after his demise and, therefore, the immediate transfer of property was not required. Further recital of the prosecution story would show that appellant refused to buy this logic and instead persisted with his demand. Deceased-Kamlu, being fed up with the continuous demand of the transfer of property by the appellant, called some respectables including PWs Dina, Des Raj and Dhani Ram to persuade the appellant. The said respectables of the locality also stated to have made the appellant to understand that he was the lone natural heir of his father-in-law, deceased-Kamlu, therefore, there was no need of transfer of property in his name at this juncture, but it appears that they succeeded to convince deceased-Kamlu to transfer half of his landed property in the name of appellant and accordingly, the appellant was also conveyed that his father 15 CRA No.9900004/2012 a/w CONF No. 22 of 2012 in-law was ready to transfer half of his property in his name probably with a view to buy peace in the family. However, as recited in the police case, the appellant was not convinced with this proposal and left the house in protest. Deceased-Kamlu followed him and requested the appellant to return home pleading that he would even transfer his entire land in his name. By this time, it appears that the appellant was overpowered by his greed of property and it is alleged that he did not listen to his father in-law and instead attacked deceased-Kamlu with repeated blows of sickle in his hand. Since Kamlu was inflicted injuries with a sharp edged weapon repeatedly on the vital parts of his body, he succumbed to the injuries on the spot. It is further case of the prosecution that when mother in-law of the appellant, PW Kamal Dai, made an attempt to intervene, she too was attacked by him and she also sustained injuries. The eye witnesses and the villagers present on the post tried to catch hold of the appellant, but he managed to give a slip to them, went inside in his house and attacked his innocent four months old suckling baby sleeping on a cot on his abdomen, killed him then and there. It is evident from the afore narration of the prosecution case, as recited in the final report, that the appellant with a motive to grab the landed property of his father in-law intentionally made a murderous assault upon him and in the process he not only attacked his mother in law, but went on to kill his own son.

39. The prosecution in order to bring home guilt of the appellant has examined five eye witnesses and these five eye witnesses happened to be close relatives not only of the deceased but also of the appellant. Therefore, the prosecution case hinges upon the testimonial potency of these five eye witnesses including wife and mother in-law of the appellant and PWs 16 CRA No.9900004/2012 a/w CONF No. 22 of 2012 Dina, Des Raj and Dhani, who are stated to have assembled in the house of the deceased on the fateful day to settle the dispute.

40. Both wife and mother-in-law of the appellant have given a graphic narration as to what happened on the fateful day. PW Kamal Dai, mother in-law of the appellant and widow of deceased-Kamlu, has stated that her only daughter PW Darshana Devi was married to the appellant about nine years back and the couple was living a peaceful life. The appellant was looking after the entire family property and they were blessed with two sons and two daughters. She has alleged that an year before the occurrence, appellant started demanding the transfer of landed property in his name and her husband, deceased Kamlu, would persuade the appellant that the entire property belongs to him, so there was no need for transfer of the property as he would inherit the property in due course of time, but the appellant did not agree with this proposal and pressed for his demand. Mother in-law of the appellant goes on to allege that 4-5 days before the occurrence, appellant once again raised the issue of transfer of landed property in his name, and since the appellant persisted with his demand, her husband, deceased-Kamlu, called the neighbours PWs Dina, Des Raj and Dhani Ram and requested them to make the appellant understand. As per her statement, they tried to settle the dispute between the father in-law and son in-law and told the appellant that the deceased was ready to transfer half of his landed property in his name at this juncture. But the appellant refused to buy this proposal and left the house in protest, deceased-Kamlu rushed after him and requested the appellant to return home as he told him to transfer his entire landed property in his name, but the appellant did not listen to him and inflicted repeated blows of sickle on 17 CRA No.9900004/2012 a/w CONF No. 22 of 2012 his head, as a result he died on the spot. PW Kamal Dai has further stated that when she tried to intervene, she was also attacked by the appellant and she too got injured. The people present on the spot tried to catch hold of the appellant but he managed to escape, went inside the house, and attacked his six months old child with the same weapon repeatedly and killed him also. The witness has clarified in her statement that the occurrence took place in an open field and though it was dark, but they had witnessed the occurrence with the help of Mashals. She has further made it clear that the appellant at the time of occurrence was not suffering with any mental ailment and he was mentally sound. The statement of PW Kamal Dai as also the prosecution story finds corroboration from none other than wife of the accused, PW Darshana Devi, who has toed the same line as that of her mother and mother in-law of the appellant.

41. PW Darshana Devi, like her mother PW Kamal Dai, has also narrated a vivid account of the occurrence. She has also stated about her relationship with the appellant and relationship of the appellant with her parents as also the witnesses present at the scene of occurrence. This witness has also deposed without mincing words that appellant started demanding the transfer of landed property from her father, deceased Kamlu, a year before the occurrence. The appellant persisted with his demand, as a result her father was left with no option but to summon some respectable persons from the neighbourhood. On the fateful day, PWs Dhani Ram, Des Raj and Dina came to their house in order to persuade the appellant that there was no immediate necessity to transfer the landed property in his name, but deceased-Kamlu was ready to transfer half of his land in his name. The appellant did not agree to it and left the house in protest. He was followed 18 CRA No.9900004/2012 a/w CONF No. 22 of 2012 by deceased-Kamlu, who not only requested the appellant to return home but even proposed to transfer his entire landed property. However, the infuriated appellant dealt repeated blows of sickle in his hand on the vital parts of the body of deceased-Kamlu, as a result her father died on the spot. She goes on to state that when her mother PW Kamal Dai made an attempt to intervene, she too was attacked by the appellant with the same sharp edged weapon and she also sustained injuries on her vital parts. Proceeding with the narration, the wife of the appellant, PW Darshana Devi, has further deposed that the persons present on the spot tried to overpower the appellant, but he succeeded to escape, went inside the house and killed their six months old son sleeping on a cot. On seeing her suckling baby killed at the hands of his father, PW Darshana Devi fell unconscious on the spot. She has also identified the weapon of offence shown to her in the court. PW Darshana Devi has also clarified in her cross-examination that appellant at the time of occurrence was mentally sound and though it was dark, they had clearly seen the occurrence in the light of Mashals.

42. Both these material eye witnesses appear to be in concurrence in their depositions in the trial court. The statements of these witnesses, who happen to be close relatives of the appellant, have been corroborated on all material aspects by PWs Des Raj & Dhani. They have also made similar statements that appellant was live-in son-in-law of deceased- Kamlu for the last about nine years. He started making demand for the transfer of landed property. They were asked by deceased-Kamlu to persuade the appellant, but the appellant refused to listen to them and on the fateful day when appellant was reluctant to accede to their persuasion, he left the 19 CRA No.9900004/2012 a/w CONF No. 22 of 2012 house. Deceased-Kamlu followed him, he pleaded the appellant to return home as he was ready to transfer his entire property in his name, but appellant made repeated blows of sickle on the head and vital parts of the body of deceased-Kamlu, as a result Kamlu died on the spot. Both PWs Des Raj and Dhani have clearly stated that they had witnessed the appellant attacking deceased-Kamlu with the sickle. They have also stated that they could not intervene because the appellant was armed with sharp edged weapon and when mother in-law of the appellant tried to intervene, she was also attacked by the appellant and she sustained injuries. The deceased-Kamlu fell down and died on the spot. Both of them have further narrated that the appellant after killing his father in-law, went inside the house and killed his six months old baby as well.

43. On assiduous appreciation of these four eye witnesses, we have failed to find any aberration, distortion or discrepancy in their statements. These four eye witnesses have not only supported the prosecution version, but also corroborated the statements of each other on material aspects as to the manner of occurrence and the motive behind this gruesome murder of the duo and the mental state of the appellant at the time of occurrence. The eye witnesses have made it clear in their respective cross-examinations that the appellant at the time of occurrence or even shortly before that was not suffering with any mental ailment and they have rather deposed in clear terms that the appellant at the time of occurrence was in a fit state of mind. It is significant to note that PW Darshana Devi is wife of the appellant and PW Kamal Dai is his mother in-law, and there is no reason for these close relatives of the appellant to implicate him in a false case. The defence has miserably failed to elicit anything from the cross-examination of these 20 CRA No.9900004/2012 a/w CONF No. 22 of 2012 witnesses, which could dilute the rigour of their statements made in the trial court. The defence has also failed to establish from the cross- examination of these eye witnesses that the appellant at the relevant time was laboring with any unsoundness of mind.

44. The testimonial credibility of these four eye witnesses has also been corroborated by the medical officer, who conducted autopsy on the dead bodies of deceased persons. The statement of PW Dr. Mohd. Yaseen, assumes significance for two reasons; i) that he has given his expert opinion about the injuries found on the dead bodies of the deceased persons; and ii) the cause of their death. Deceased-Kamlu was found to have a lacerated wound over the temporal and parietal region, skull bones of the same region were found fractured exposing brain matter and the left ear was found chopped. There was also lacerated wound over the left side of occipital region with fracture of underlying bone, exposing brain matter. The medical officer has also found a lacerated wound over both hands. Stab wounds in the left lumber region (3 nos.) and stab wound on left shoulder. There was bleeding from internal ears and both the nostrils as also the mouth.

45. Likewise, deceased-Tiblu was found to have multiple penetrated stab wounds over upper abdomen and chest, resulting in injuries to both lungs and rupture of liver. The deceased was found to have incised wounds over both thighs, two in each. In the opinion of the medical expert, who conducted autopsy, the deceased had died due to injuries on vital organs of the body, resulting in shock, cardio respiratory failure and finally death. In the opinion of PW Dr. Mohd. Yaseen, the injuries were sufficient in 21 CRA No.9900004/2012 a/w CONF No. 22 of 2012 ordinary course of nature to cause the death of deceased and the injuries were of brutal nature and fatal.

46. Now, if we juxtapose the statements of four eye witnesses to the statement of the expert, who conducted autopsy on the dead bodies of deceased persons, we find that the injuries narrated by the eye witnesses stated to have been sustained by deceased at the hands of the appellant, have been corroborated by PW Dr. Mohd. Yaseen. The injuries noticed by the medical officer in the post mortem reports EXPW-MY and EXPW-MY/1 are found matching with the statements of eye witnesses. If the statements of these five material witnesses are read in conjunction, we find that the injuries found on the deceased persons co-relate with the description of injuries given by the eye witnesses.

47. PW Dr. Mohd. Yaseen has also given opinion with respect to the weapon of offence shown to him as also with respect to Farad Surat Hal. Expert has opined that the weapon of offence shown to him could cause the injuries found on the persons of the deceased. Therefore, the prosecution has also succeeded to prove that the statement of the doctor is in complete conformity with the account of events given by the eye witnesses.

48. Learned trial Court has rightly underlined the significance of Farad Surat Hal. It is a vital document prepared by the investigating agency immediately after the occurrence. As per Farad Surat Hal EXPW-MY/IV of deceased Kamlu, the deceased was having wounds on his head, his left shoulder, neck, left arm, left hand and his right ear was chopped off. Similarly, Farad Surat Hal EXPWMY/III of deceased Tiblu reveals that he was having injuries on his abdomen and legs. Both these memos i.e. Farad Surat Hal are also found in complete conformity with the post mortem 22 CRA No.9900004/2012 a/w CONF No. 22 of 2012 reports, the prosecution version as also the description of the occurrence narrated by the eye witnesses.

49. It is also the prosecution case that mother in-law of the appellant PW Kamal Dai tried to intervene, she was also attacked by the appellant and she sustained a head injury. The prosecution version to this effect, as noticed earlier, has been supported by all the eye witnesses, except PW Darshna Devi. As per injury memo, PW Kamal Dai has lacerated wound on left parietal region 2cm x 1 ½ cm and in the opinion of the doctor the injury was simple in nature caused by blunt object. Although the doctor, who has examined PW Kamal Dai, has not been examined by the prosecution, however, the statement of the injured duly corroborated by rest of the eye witnesses, in our view, is sufficient to conclude that appellant made a murderous assault on his mother in-law as well.

50. One of the grounds urged in the memoranda of appeal is that prosecution has failed to prove the disclosure statement and consequent recovery of the weapon of offence. It is the prosecution case that the appellant made a disclosure statement and as a consequent to the disclosure statement made by him the weapon of offence was recovered at his instance. PW Durga, in whose presence the alleged weapon of offence is stated to have been recovered pursuant to the disclosure made by the appellant, has not supported the prosecution case. PW Durga turned hostile. However, the investigating officer PW Pawan Khajuria has deposed that appellant made a disclosure statement and the weapon of offence came to be recovered in consequence to his disclosure at his instance. Although the statement of investigating officer has not been corroborated by the independent witnesses but it is pertinent to mention that eye witnesses 23 CRA No.9900004/2012 a/w CONF No. 22 of 2012 have clearly described about the weapon of offence as a sharp edged weapon i.e. sickle and the narration of these four eye witnesses have been supported by the medical expert, who has tendered his opinion with respect to weapon of offence and as per the opinion of the doctor, the injuries found on the persons of the deceased could be caused by the same weapon.

51. It is settled position of law that non recovery of weapon of offence pales into insignificance, if the prosecution case is otherwise established on the basis of cogent, trustworthy and reliable prosecution evidence. Hon'ble Supreme Court in State of Rajasthan Vs. Arjun Singh and Ors. etc. reported as AIR 2011 (SC) 3380 has ruled as below:-

"Mere non recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable."

52. A similar view has been expressed by the Hon'ble Supreme Court in Md.

Jamiluddin Nasir v. State of West Bengal reported as AIR 2014 (SC) 2587. Relevant extract is as below:-

"Non production of weapon of offence used in attack by accused - neither fatal to prosecution nor any adverse inference can be drawn on that score."

53. Similarly, Hon'ble Supreme Court in Nankaunoo Vs. State of U.P. reported as AIR 2016 (SC) 447 also made a similar observation in following words:-

"Unimpeachable oral evidence coupled with the medical evidence that deceased met with homicidal death due to gunshot injuries and mere non recovery of weapon of offence viz., „countrymade pistol‟ does not materially affect prosecution case."

24 CRA No.9900004/2012 a/w CONF No. 22 of 2012

54. It is manifest from the afore quoted case law that non recovery of the weapon of offence pales into insignificance, if the prosecution case is otherwise proved on the basis of direct clinching evidence.

55. Be that as it may, the deposition of the investigating officer with respect to the disclosure statement made by the appellant and the consequent recovery of weapon of offence at his instance stands corroborated by the statement of the expert medical officer, who has tendered his opinion with respect to the weapon of offence produced before him.

56. It is manifest, as such, on close scrutiny of the prosecution evidence, discussed herein above, that the prosecution has succeeded to establish that appellant was married to the only daughter of deceased-Kamlu about nine years back. He started living as live-in son-in-law in the house of his in- laws. A year before the occurrence, the appellant started demanding the transfer of the landed property in his name, to which deceased-Kamlu made an endeavour to convince the appellant that since he was his only natural heir, the entire landed property would automatically go to him in due course of time and in particular, after his demise he would naturally succeed his whole property. The appellant refused to buy this logic, as a result, deceased Kamlu called his neighbourers PWs Des Raj, Dhani Ram and Dina to make the appellant understand. The prosecution has succeeded to prove that on the fateful day, when these witnesses stated to be respectables of the locality failed to convince the appellant, he got infuriated and left the house in protest. The appellant was followed by his father in-law, deceased-Kamlu, who not only beseeched the appellant to return home, but proposed to transfer his entire landed property in his name, but appellant was not prepared to listen to him and dealt repeated 25 CRA No.9900004/2012 a/w CONF No. 22 of 2012 blows of sickle on his head, as a result his father in-law, deceased- Kamlu, died on the spot. When mother in-law of the appellant tried to intervene, she was also assaulted by him, as a result she too sustained grievous injury. The appellant succeeded to give a slip to the eye witnesses when they tried to catch hold of him, he went inside the house and inflicted repeated blows on the abdomen of his innocent suckling baby asleep on a cot and killed him too on the spot.

57. The appellant has questioned the impugned judgment on the predominant premise that at the relevant time, he was suffering from insanity/mental ailment and since he was not in a fit state of mind to understand the consequences of the act committed by him, he cannot be fastened with any liability or guilt of the occurrence alleged to have been committed by him. This takes us to the defence version.

58. Section 84 RPC lays down that 'Nothing is an offence which is done by a person who, at the relevant time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of his act or that he is doing what is either wrong or contrary to law'. A careful perusal of this provision would show that if an accused takes a refuge of Section 84 RPC, that by reason of his unsoundness of mind, he was not in a position to know the nature of the act being committed by him, there is an inherit admission on his part that he has committed the offence, but he was unaware of the consequences of his act and he was incapable to know that what he was doing, was either wrong or contrary to law. With this legal background in mind, we find force in the observation of trial court that the twin pleas raised by the appellant in the case are mutually contradicted to each other. On the one hand, it is the case of the appellant that he has not committed 26 CRA No.9900004/2012 a/w CONF No. 22 of 2012 any crime and the alternative plea taken by him is that he was insane at the relevant time. While taking the plea of insanity, as stated above, there is an admission on the part of the accused that it was he who committed the crime, but he is protected by the defence of insanity. The plea raised by the appellant that he has not committed the crime stands already demolished as the prosecution has succeeded to prove that it was appellant, who made murderous assault on both the deceased.

59. Mr. Anmol Sharma, learned counsel for the appellant, has argued in his usual vehemence that various medical reports on the file of trial court would show that the appellant at the time of occurrence was suffering with mental ailment. He has taken us to different medical reports on record and laid emphasis on the statements of the defence witnesses DWs Mohan Lal and Dr. Suresh Kumar, Registrar Psychiatric Disease Hospital GMC Jammu.

60. A perusal of the record would show that final report in the present case was laid in the Magisterial Court in October, 2002 wherefrom it was committed to the trial court. The record would also show that a plea was raised by the defence that appellant was not in a fit state of mind and since he was suffering with mental ailment, therefore, a request was made to send him for medical examination. The prayer of the defence was allowed and accordingly, the appellant was sent for medical examination by the trial court vide order dated 26.11.2002. As a result, as it emerges from the record, the trial of the case was adjourned number of times in order to ascertain the mental status of the appellant. Learned trial court finally on 17.01.2005 concluded that the appellant was mentally sound and 27 CRA No.9900004/2012 a/w CONF No. 22 of 2012 accordingly, he was formally charged for the offences allegedly committed by him and the trial of the case commenced.

61. It is significant to note that the conclusion of the trial Court that appellant was mentally sound, thus, prompting the trial court to proceed with the trial, was never questioned by the appellant and a similar plea of insanity or unsoundness of mind was never raised by the appellant thereafter. Since the order of the trial Court dated 17.01.2005 that appellant was mentally sound, has already attained finality, the appellant cannot be allowed to reopen the said plea at this length of time. However, since the appellant has produced the medical experts in support of his defence to establish that he at the relevant time was suffering with unsoundness of mind, therefore, statements of the defence witnesses are required to be scrutinized in order to ascertain whether the appellant at the time of alleged commission of occurrence was suffering with unsoundness of mind or insanity or mental ailment for that matter, which incapacitated him to know the nature of his act or that what he was doing was either wrong or contrary to law.

62. The statement of DW Mohan Lal being self contradictory is of no avail.

Though he made an endeavour in his chief examination to prove that appellant at the relevant time had lost his mental balance in 2002 and was taken to the hospital for treatment, but he admitted in his cross examination that since the place of occurrence is 3 kilometers away from his house so he could not say that whether the appellant during those days was living with his in-laws or not and he further clarified that he had not gone to the place of occurrence. Therefore, the defence version is now perched on the sole testimony of DW Dr. Suresh Kumar, Registrar Psychiatric Disease Hospital GMC Jammu.

28 CRA No.9900004/2012 a/w

CONF No. 22 of 2012

63. As per the statement of Dr. Suresh Kumar, the appellant visited the hospital as OPD patient on 08.06.2000 and for follow up treatment on 28.08.2000. It is pertinent to note that Dr. Suresh Kumar has said so on the basis of the OPD Register of the Psychiatric Hospital Jammu and he has stated that there was no record maintained in the hospital where from the ailment of the appellant and the treatment given to him could be ascertained. The witness has clearly stated that on the basis of aforesaid two entries, it was not possible to say that appellant visited the hospital for what treatment and what treatment was given to him. A similar report has been made in EXTD-2 issued by Dr. Suresh Kumar that appellant visited the hospital once in June, 2000 and for follow up in August, 2000. It is pertinent to recall that occurrence in the present case dates back 18.08.2002 and the certificate EXTD-2 is silent about any mental ailment of the appellant at the relevant time. Neither there is any mention in EXTD-2 nor the defence witness DW Dr. Suresh Kumar has stated that appellant was suffering with insanity or unsoundness of mind or any mental ailment for that matter at the relevant time. i.e. in August, 2002 or immediately before or after the occurrence alleged to have been committed by him.

64. Hon'ble Supreme Court in a similar fact situation in Mohd. Anwar Vs. State (NCT of Delhi) reported as (2020) 7 Supreme Court Cases 391 has held as below:-

"17. Mere production of photocopy of an OPD card and statement of mother on affidavit have little, if any, evidentiary value. In order to successfully claim defence of mental unsoundness under Section 84 IPC, the accused must show by preponderance of probabilities that he/she suffered from a serious-enough mental disease or infirmity which would affect the individual‟s ability to distinguish right from wrong. Further, it must be established that the accused was afflicted by such disability particularly at the time of the crime and that but for such impairment, the crime would not have been committed. The 29 CRA No.9900004/2012 a/w CONF No. 22 of 2012 reasons given by the High Court for disbelieving these defences are thus well reasoned and unimpeachable."

65. Mr. Anmol Sharma, learned counsel for the appellant, has taken us through various medical reports on the record of trial court file and on perusal, two reports viz., Report No.2053-54 dated 20.02.2009 and report dated 29.10.2007 would require a specific mention. The report dated 20.02.2009 is signed by a board of five doctors. As per this report, the appellant was hospitalized vide MRD No.9295/08 on 23.02.2008 for psychiatric diagnosis and it is pertinent to mention that after evaluation of his mental condition, the board of doctors has opined that appellant/accused had got normal mental status and he did not suffer from any primary psychiatric disorder. However, during interview, it was found by the board of doctors that appellant had got attack of fits and was treated with drugs and he required neurological examination.

66. The second communication of the Medical Superintendent, Psychiatric Diseases Hospital, Jammu reveals that appellant was never admitted in the Psychiatric Diseases Hospital Jammu. Therefore, it is evident from both these communications as also from the defence evidence that the plea of insanity raised by the appellant in the present case is nothing but an afterthought.

67. As already discussed, the occurrence traces its origin to the month of August, 2002 and there is nothing on the record to suggest that appellant at the relevant time i.e. on the day of occurrence or immediately before or after the occurrence was suffering with any mental ailment or disorder. Failure on the part of the defence to prove that appellant at the time of alleged commission of offence or immediately before or after the occurrence was suffering with unsoundness of mind, rather lends 30 CRA No.9900004/2012 a/w CONF No. 22 of 2012 credibility to the prosecution case as also the statements of the prosecution witnesses that the appellant at the time of commission of offence was in sound and fit state of mind, and he was not suffering with any mental disorder. It is the prosecution case, as also the version of the prosecution witnesses that appellant after his marriage with the lone daughter of deceased-Kamlu was not only leading a peaceful matrimonial life but was taking care of the entire agricultural property of the said deceased. Not only this, the appellant raised the issue of transfer of property in his name, just an year before the occurrence. Since his father in-law was not readily prepared to transfer his landed property in the name of the appellant, it infuriated him and it seems that due to the reluctance on the part of his father in-law, the appellant lost his mental balance and made him to commit the ghastly murder of his father in-law and the greed of property led him to even kill his own son.

68. Although there are some medical communications on the record to indicate that the appellant got some attack of fits, but we need to understand that there is difference between the medical insanity and legal insanity. There is considerable difference between the legal concept of insanity from its medical conception.

69. It is trite that a person is presumed to be sane until contrary is proved and the burden to prove the contrary lies on the accused. The burden of proof, in the face of illustration of Section 105(A) of the Evidence Act, is on the accused to establish the plea of insanity under Section 84 RPC. The legal position in this regard is by far crystallized now that one who seeks exoneration from liability of his act in the light of Section 84 RPC, is to 31 CRA No.9900004/2012 a/w CONF No. 22 of 2012 establish legal insanity and not medical insanity, and that the burden to prove legal insanity lies on the accused.

70. It is required to be underlined that an accused in order to claim the benefit of Section 84 RPC is obliged to prove that at the relevant time he was suffering with unsoundness of mind within the meaning of Section 84 RPC and by reason of unsoundness of mind he was not capable of knowing the nature of his act and its consequences.

71. Hon'ble Supreme Court in Surendra Mishra Vs. State of Jharkhand reported as (2011) 11 Supreme Court Cases 495, commenting upon the import of Section 84 IPC (corresponding to Section 84 RPC), has clearly ruled that every person suffering with any kind of mental ailment or unsoundness of mind is not ipso facto exempted from criminal liability. Relevant extract of the judgment runs as below:-

"8.............................................................................................................. ......................................... In view of the plea raised it is desirable to consider the meaning of the expression "unsoundness of mind" in the context of Section 84 of the Indian Penal Code and for its appreciation, we deem it expedient to reproduce the same. It reads as follows:

"84. 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."

Section 84 of the Indian Penal Code is found in its Chapter IV, which deals with general exceptions. From a plain reading of the aforesaid provision it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law.

9. But what is unsoundness of mind? This Court had the occasion to consider this question in the case of Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66, in which it has been held as follows:

"13.The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, 32 CRA No.9900004/2012 a/w CONF No. 22 of 2012 odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section."

10. The scope and ambit of the Section 84 of the Indian Penal Code also came up for consideration before this Court in the case of Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109 in which it has been held as follows:

"10. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of `unsoundness of mind' in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term `insanity' itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity."

11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Indian Penal Code."

72. Hon'ble Supreme Court in the same verdict in Surendra Mishra (supra) also discussed about the onus to prove insanity and held as follows:

"12. The next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind.

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 33 CRA No.9900004/2012 a/w CONF No. 22 of 2012 producing evidence as to the conduct of the accused prior to the offence, 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 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 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 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."

73. From the legal position discussed above, it is evident that every person suffering from any kind of mental disorder or mental disease, is not ipso facto exonerated from the liability of his act under Section 84 RPC. Even 34 CRA No.9900004/2012 a/w CONF No. 22 of 2012 the fits of insanity at short intervals or epileptic fits or abnormal behavior of a person are not sufficient to claim the benefit of Section 84 RPC. It is also evident that mere ipse dixit of an accused is not sufficient to attract the application of Section 84 RPC or the benefit of exceptions under Chapter IV of RPC. The law presumes that a person to be sane unless contrary is proved and the burden to prove the contrary in view of illustration of Section 105(A) of the Evidence Act, lies on the person who raises the plea i.e. accused. Although the requisite standard of proof is not as high as on the prosecution to prove the case beyond reasonable shadow of doubt, but he is required to prove the same by the standard of preponderance of probabilities. In the circumstances, the behavior of the accused preceding, attending and following the crime is required to be taken into consideration.

74. With this legal background in mind, a studied appreciation of the prosecution case would show that the conduct and behavior of the appellant preceding, attending and following the occurrence was quite normal and the appellant was not only having a fit state of mind, but was capable to understand the consequences of his act. He was not only taking care of the landed property of his in-laws, but after the commission of the crime he fled from the scene of occurrence, concealed the weapon of offence in order to avoid the detection of the crime. The occurrence is alleged to have taken place on 18.08.2002 and as per the statement of the investigating officer the appellant was arrested from the maize field on 23.08.2002, followed by the recovery of the weapon of offence at his instance consequent upon his disclosure statement.

35 CRA No.9900004/2012 a/w

CONF No. 22 of 2012

75. In a similar fact situation, Hon'ble Supreme Court in Mohd. Anwar (supra) held as below:-

"16. The plea of mental disorder too remains unsubstantiated.

No deposition was made by any witness, nor did the appellant himself claim any such impairment during his Section 313 CrPC statement. On the contrary, his conduct of running away from the spot of the crime on 17.05.2001 as well as the attempt to escape from the bus on 20.05.2001, evidence an elevated level of mental intellect. The answers recorded in response to the questions put forth by the Additional Sessions Judge at the Section 313 CrPC stage are also not mechanical or laconic. For example, the appellant explains his refusal to participate in the TIP proceedings by alleging that his face had already been shown by the police to the complainant."

76. Therefore, in this view of the matter, it is clear that appellant has failed to prove the plea of insanity even by the standard of preponderance of probabilities. On the flip side, prosecution has succeeded to establish the guilt of the appellant beyond reasonable shadow of doubt, by leading credible, cogent and trustworthy evidence.

77. Having regard to the aforesaid discussion, we do not find any illegality muchless perversity in the impugned judgment of conviction.

78. This takes us to the ultimate analysis of the quantum of sentence imposed upon the appellant.

79. The Criminal Law, in general, adheres to the principle of proportionality in prescribing the sentence in accordance to the culpability of criminal conduct. Proportion between crime and punishment remains a strong influence in determination of sentences. The criminal law responds to the 36 CRA No.9900004/2012 a/w CONF No. 22 of 2012 reformative theory or the deterrence machinery depending upon the factual matrix of each case, as also the nature of crime, the manner in which it was premeditated and executed, the motive preceding the commission of the crime, the conduct of the accused, the nature of the weapon of offences and the attending circumstances. In order to decide a just and appropriate sentence, having regard to the facts and circumstances of a case, the aggravating and mitigating circumstances in which the crime has been committed are required to be delicately balanced in a dispassionate manner and such act of balancing is indeed a difficult task.

80. The Apex Court had an occasion to discuss the process of sentencing in Dhananjoy Chaterjee Vs. State of W.B. reported as 1994 (2) SCC 220 and observed that shockingly large number of criminals go unpunished thereby encouraging the criminals and in the ultimate making justice suffer by weakening the system's credibility. A similar view was expressed by Hon'ble Supreme Court in Ravji @ Ram Chandra Vs. State of Rajasthan reported as 1996 (2) SCC 175. Therefore, criminal courts have been consistently observing that the sentence to be imposed for each kind of criminal conduct, must be proportionate to the crime committed.

81. It goes without saying that for conviction under Section 302 RPC, the law provides only two options between death sentence and imprisonment for life. A life imprisonment is the rule and death sentence is an exception. The capital punishment or the extreme penalty of death sentence is resorted to only when life sentence is found altogether inadequate. If we recall the manner, in which, the appellant in the present case has committed the ghastly murder of his unarmed father-in-law and innocent four months old suckling baby asleep on a cot and ask the common man about the sentence, 37 CRA No.9900004/2012 a/w CONF No. 22 of 2012 the common man without any hesitation would propose death sentence for the appellant in view of the enormity of the crime committed by him, but the legal parameters do not permit us. Learned trial Court has rightly balanced the aggravating and extenuating circumstances before handing down the conviction upon the appellant and rightly observed that whatever happened in the present case was without premeditation and happened on the spur of moment. The appellant indeed has been driven by the greed of property to commit the gory crime. The appellant is now stated to be 47 years of age with three children and a wife to look after. There is nothing on the record to suggest that the appellant had any criminal background. Undoubtedly, the crime committed by the appellant was unpardonable but keeping in view the legal parameters the present case does not fall within the category of 'rarest of the rare case'. Thus considered, we are of the opinion that the appellant has been rightly sentenced, by the learned trial Court, for the minimum imprisonment prescribed under law i.e. imprisonment for life for the offence committed under Section 302 RPC and for five years for offence under Section 307 RPC as also for payment of fine.

82. Having regard to what has been discussed and observed hereinabove, we do not find any illegality, muchless perversity in the impugned judgment of conviction and the order of sentence passed by the learned trial Court. The impugned judgment and order are well reasoned and we have not been persuaded to take a different view from the one taken by the learned trial Court. Hence, the present appeal being devoid of any merit, is dismissed and the impugned judgment of conviction and order of sentence are upheld. Bail bonds of the appellant shall stand cancelled and he is directed 38 CRA No.9900004/2012 a/w CONF No. 22 of 2012 to surrender before the Superintendent, Jail concerned within a period of seven days from today, failing which, learned trial court shall proceed in accordance with law. The Reference is answered accordingly.

83. Record be returned to the trial Court forthwith.

84. A copy of this order be also sent to the trial Court for compliance.

                                    (RAJESH SEKHRI)                     (RAJNESH OSWAL)
                                       JUDGE                                JUDGE

JAMMU
18.11.2022
Narinder
                                     Whether the order is speaking?            Yes
                                     Whether the order is reportable?          Yes

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