Madhya Pradesh High Court
Sher Singh @ Mullu vs State Of M.P. on 25 April, 2017
Bench: N.K. Gupta, S.K. Awasthi
1 Criminal Appeal No.541/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
AFR
DIVISION BENCH:
(Judge)
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
CRIMINAL APPEAL NO. 541 of 2007
Sher Singh @ Mullu
Vs.
State of Madhya Pradesh
For the appellant : Shri Dharmendra Rishishwar,
Advocate.
For respondent/State : Shri Vishal Mishra,
Additional Advocate General
with Shri R.K. Awasthi, Public
Prosecutor.
JUDGMENT
(25/04/2017) Per Justice N.K. Gupta:
The appellant has preferred the present appeal being aggrieved by the judgment dated 12.04.2007 passed by the Additional Sessions Judge and Special Judge [under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act], Gwalior (M.P.) in S.T. No.282/2005 whereby the appellant has been convicted of offence under Sections 302 and 323 of IPC and sentenced to imprisonment for life and three months' rigorous imprisonment respectively. The sentences were directed to run concurrently.
2 Criminal Appeal No.541/2007 (2) Prosecution's case, in short, is that complainant, namely, Mukut Singh (PW-4), father of the appellant, lodged the Dehati Nalisi Ex.P-6 on 01.08.2005 at about 09:20 am before Mr. Chhaviram (PW-8) Station House Officer, Police Station, Morar, District Gwalior (M.P.) that Smt. Usha Devi (PW-6), daughter of Mukut Singh (PW-4) along with her husband was residing in the house of one Gayaram Pal on rent. Appellant Sher Singh @ Mullu had reached the house of Smt. Usha Devi (PW-
6) three days prior to 30.07.2005 whereas complainant Mukut Singh (PW-4) and his son deceased Balwant came to the house of Smt. Usha Devi (PW-6) on 30.07.2005 at about 03:00 pm. It was decided that the appellant shall be taken for his treatment to Mehndipur Balaji. In the past, he was taken to that place on 01.07.2005 but he had run away from that place. In the intervening night of 31.07.2005 and 01.08.2005, Mukut Singh (PW-4) along with deceased Balwant were sleeping in the house of Smt. Usha Devi (PW-6); Smt. Usha Devi (PW-6) and her husband were sleeping on the terrace. Suddenly, at about 04:00 to 04:30 am appellant Sher Singh alias Mullu started assaulting the deceased Balwant with a spade. He gave a few blows. The complainant Mukut Singh (PW-4) tried to save the deceased Balwant Singh for which he laid down on the deceased Balwant Singh, therefore, he also sustained one blow of spade on his back. On screaming, Smt. Usha Devi (PW-6), her husband and Ajay Singh Gautam (PW-1) came to the spot. They held the appellant and tied him with the rope. When the deceased Balwant was being taken to the hospital, he died on the way and therefore his body was taken back to the house of Smt. 3 Criminal Appeal No.541/2007 Usha Devi (PW-6). Mr. Chhaviram (PW-8), Station House Officer, after completing the formalities sent the dead body of the deceased Balwant for post mortem. Dr. Puranlal Gupta (PW-2) performed the post mortem on the body of the deceased Balwant and gave a report Ex.P-5. Dr. Puranlal Gupta (PW-2) found as many as four injuries to the deceased. Mainly 6th and 7th vertebrae were found broken and spinal cord below those vertebrae was also broken and deceased died due to such injuries. According to Dr. Puranlal Gupta (PW-2), death of the deceased was homicidal in nature and the injuries sustained by him were sufficient to cause his death in the natural course of his life. Mr. Chhaviram (PW-8), Station House Officer, took the spade and rope from complainant Mukut Singh (PW-4) and prepared seizure memo Ex.P-3. He also prepared a spot map Ex.P- 7 and examined various witnesses. Complainant Mukut Singh (PW-4) was sent for his medico-legal examination but he could not come to the hospital due to his old age and as he was suffering from heart ailments and therefore no medico-legal examination of Mukut Singh (PW-4) could be done. After due investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Gwalior (M.P.) who committed the case to the Court of Sessions and ultimately it was transferred to the concerned Additional Sessions Judge. (3) Appellant abjured his guilt. He took a plea that he did not assault or kill his brother. Though he did not take any plea of insanity, his wife Smt. Anita Singh Sengar (DW-1), co-brother Ramkumar Singh (DW-2), Dr. Shiv Shankar (DW-3) and Dr. Subhash Chandra Upadhyaya (DW-4) were examined to prove that the 4 Criminal Appeal No.541/2007 appellant was suffering from insanity at the time of incident. The learned Additional Sessions Judge after considering the evidence adduced by the parties convicted and sentenced the appellant as mentioned above.
(4) We have heard the learned counsel for the parties. (5) In the present case, first of all, it would be appropriate to consider as to whether death of the deceased Balwant was homicidal in nature or not. In this connection, the post mortem report Ex.P-5 proved by Dr. Puranlal Gupta (PW-2) is important. He found the following injuries to the deceased Balwant:-
"1. Bruise over left side of neck 8 cm long, linear, reddish blue in colour;
2. Incised wound over neck parallel to above wound on left side size 6 cm x ¼ cmx bone deep;
3. 2 cm below the wound No.2 on same region, bruise 6 x 1/2 cm present;
4. Abrasion over left side of neck 4 x 2 cm."
On opening of the body, he found that 6th and 7th vertebrae below the neck were broken and the spinal cord below those vertebrae was also broken. According to Dr. Puranlal Gupta (PW-2), the deceased died due to aforesaid injuries and such injuries were sufficient to cause his death in the natural course of his life. According to doctor, the death of the deceased Balwant was homicidal in nature. If the injuries sustained by the deceased Balwant are examined then it was not possible for the deceased to cause such injuries himself. Such injuries could not be caused in the closed house due to 5 Criminal Appeal No.541/2007 an accident and when the death of the deceased was neither accidental nor suicidal then looking to the injuries it was homicidal in nature. There is no reason to discard the opinion given by Dr. Puranlal Gupta (PW-2). The trial court has rightly found that the death of the deceased Balwant was homicidal in nature and he sustained such injuries which were sufficient to cause his death in the natural course of his life. (6) In this matter, Ajay Singh Gautam (PW-1), complainant Mukut Singh (PW-4) and Smt. Usha Devi (PW-6) are examined as eyewitnesses. Out of them, Ajay Singh Gautam (PW-1) has turned hostile. He is a private doctor who had rushed to the house of Smt Usha Devi (PW-6) on hearing the screams of Mukut Singh (PW-4) etc. He has stated that when he reached the spot the deceased had already died and appellant was held by his father Mukut Singh (PW-4). The appellant had also a spade in his hands. On the other hand, Mukut Singh (PW-4) and Smt. Usha Devi (PW-6) have stated that in the night after taking food all the family members were sleeping in the house. They have accepted that there was a single room taken on rent by the husband of Smt. Usha Devi (PW-6), therefore, children of Smt. Usha Devi (PW-6) were sleeping in the room and complainant Mukut Singh (PW-4), deceased Balwant and the appellant were sleeping in veranda on strong wooden bed (Takhat). Suddenly, in the night, at about 4:00 am, Mukut Singh (PW-4) heard the noise of assaults made by appellant and he saw that the appellant was inflicting blows of spade on the neck of the deceased Balwant. Mukut Singh (PW-4) screamed and also tried to save the deceased Balwant. Smt. Usha Devi (PW-6) 6 Criminal Appeal No.541/2007 and her husband who were sleeping on the terrace came down immediately and they also saw the appellant assaulting the deceased Balwant and thereafter, appellant was held by the husband of Smt. Usha Devi (PW-6) and the complainant Mukut Singh (PW-4). Balwant was being taken to the hospital for treatment but in the way he died and thus his body was taken back to the house of Smt. Usha Devi (PW-6).
(7) These witnesses are the near relatives of the appellant. Mukut Singh (PW-4) is the father whereas Smt. Usha Devi (PW-6) is the sister of the appellant. Also the deceased had the same relationship with these witnesses. The contradiction of these witnesses was recorded with their previous case diary statements about the insanity of the appellant but no suggestion could be given to these witnesses as to whether the appellant was not the person who killed the deceased Balwant. Mukut Singh (PW-4) had lodged Dehati Nalisi Ex.P-6 timely. The incident had taken place at about 04:00 to 04:30 am and thereafter, deceased Balwant was taken to the hospital but after his death on the way, he was taken back to the house of Smt. Usha Devi (PW-
6) and thereafter the police was intimated. When Mr. Chhaviram (PW-8), Station House Officer, Police Station Morar, District Gwalior (M.P.) came to the spot, Mukut Singh (PW-4), aged 80 years, could lodge the FIR [Dehati Nalisi Ex.P-6]. There is no delay visible in lodging the FIR and therefore corroboration from the FIR could be gathered. Similarly, the facts as mentioned by witnesses Mukut Singh (PW-4) and Smt. Usha Devi (PW-6) are duly corroborated by Dr. Puranlal Gupta (PW-2) who proved the post mortem report Ex.P-5.
7 Criminal Appeal No.541/2007 According to Dr. Puranlal Gupta (PW-2), the injuries found to the deceased Balwant could be caused by a spade or any heavy object which has sharp edges as well as such weapon can be used from its blunt side. Looking to the injuries in which Injury No. 2 was an incised wound and other injuries were the blunt injuries, it is established that weapon used by the accused/appellant could be a spade which has edges on its blade whereas this weapon is blunt from other side. (8) There is no reason to disbelieve the witnesses Mukut Singh (PW-4) and Smt. Usha Devi (PW-6) in the case. They have equal relationship with the deceased Balwant as well as the appellant. There was nobody in the house except the appellant who could have killed the deceased Balwant. Under these circumstances, the trial court has rightly accepted the testimony of complainant Mukut Singh (PW-4) and Smt. Usha Devi (PW-6) and rightly opined that it was the appellant who gave 3-4 blows of spade to the deceased Balwant causing his death.
(9) So far as the motive of the appellant is concerned, no witness could state about the motive. It is submitted by the learned counsel for the appellant that the appellant killed the deceased due to insanity. Hence, there was no motive with the appellant to kill his own brother by inflicting such assaults; however, in the absence of motive, it cannot be presumed that the appellant was insane. Sometimes motive of the accused cannot be imagined; even it cannot be shown before the court. In this connection, the judgment passed by the Apex Court in the case of "Atley Vs. State of Uttar Pradesh" [AIR 1955 SC 807] may be referred in 8 Criminal Appeal No.541/2007 which it is held that for conviction under Section 302 of IPC it is not necessary to prove the motive. If motive is proved then it may be the additional piece in the chain of circumstantial evidence, hence, if there was no motive of the appellant then it cannot be said that he was not the culprit.
(10) It is proved by witnesses Mukut Singh (PW-4), Smt. Usha Devi (PW-6) and Dr. Puranlal Gupta (PW-2) that the appellant gave four blows of spade to the deceased and such blows were so forceful that by such blows 6 th and 7th vertebrae of the deceased had broken and spinal cord below such vertebrae was also found broken. Under these circumstances, the intention of the appellant is duly established that he intended to kill the deceased Balwant. However, such intention should be dependent upon the fact as to whether the appellant was suffering from any insanity at the time of incident or not.
(11) Learned counsel for the appellant has submitted that at the time of incident, the appellant was suffering from insanity and therefore he is entitled to get the advantage of Section 84 of the Indian Penal Code. In this connection, the judgment passed by the Apex Court in the case of "Shrikant Anandrao Bhosale Vs. State of Maharashtra" [2003 SCC (Cri.) 144] is referred. It is also submitted that the trial court has recorded the evidence of various witnesses to the effect that as to whether the appellant was suffering from insanity and therefore such evidence could not have been considered while deciding the case and the trial should have been vitiated only on that count. In this connection, the judgment passed by the Division Bench of this Court in 9 Criminal Appeal No.541/2007 the case of "State of Madhya Pradesh Vs. Dilip Bankar" [2008(5) M.P.H.T. 53 (DB)] is referred. (12) The provision contained under Section 84 of the Indian Penal Code is reproduced as under:
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.
According to that provision, it was for the appellant to prove that he was incapable of knowing the nature of his overt act due to unsoundness of his mind. It was for the appellant to prove that he was having unsoundness of his mind up to that extent that he was unable to know the result of his act. In this connection, contradiction in the statements of Mukut Singh (PW-4), Smt. Usha Devi (PW-6) was recorded that initially both of them have stated that the deceased Balwant and Mukut Singh (PW-
4) came to the house of Smt. Usha Devi (PW-6) so that the appellant could be taken to the temple of Mehndipur Balaji for treatment of insanity. However, they denied that they had stated before the police about that fact. The temple of Mehndipur Balaji is not a place for treatment of insane persons. People take the patients to such a temple if they feel that patient is suffering from aggression of naughty soul of someone else and therefore to remove that soul the patients are taken there, hence, if complainant Mukut Singh (PW-4) and witness Smt. Usha Devi (PW-6) have stated that the appellant was to be taken to that particular temple then 10 Criminal Appeal No.541/2007 by such fact it cannot be said that the appellant was suffering from insanity at the time of incident. The trial court has mentioned that Smt. Usha Devi (PW-6) has, in her cross-examination, categorically stated that at the time when the deceased Balwant was taken to the hospital and his dead body was taken back to her house, the appellant ran away as he saw that his brother Balwant had expired. Such statement of Smt. Usha Devi (PW-6) indicates about two facts. First, the appellant was not tied with rope soon after the incident and secondly he was in such senses that when he knew about the result of his overt act, due to guilty conscious, he ran away. Looking to such evidence of Mukut Singh (PW-4), Smt. Usha Devi (PW-6) it would be apparent that the condition of the appellant was not such that he could be extended the advantage of Section 84 of IPC. (13) Defence witnesses, namely, Smt. Anita Singh Sengar (DW-1) wife of the appellant, Ramkumar Singh (DW-2) co-brother of the appellant have tried to establish that the appellant was suffering from insanity since 5-6 years. Ramkumar Singh (DW-2) has stated that treatment of appellant was done by one Dr. Ravindra Singh of Agra but no treatment papers could be produced before the court. Since these were the interested witnesses to save the appellant and hence their testimony cannot be accepted as it is unless treatment papers of the appellant would have been filed. If treatment papers were not provided by the complainant Mukut Singh (PW-4) then Dr. Ravindra Singh of Agra could have been called as a defence witness but no such steps have been taken by the appellant and therefore the evidence given by Smt. 11 Criminal Appeal No.541/2007 Anita Singh Sengar (DW-1) wife of the appellant, Ramkumar Singh (DW-2) co-brother of the appellant could not prove that the appellant was suffering from any insanity at the time of incident so that he could not understand the result of his overt act.
(14) In this connection, Dr. Shiv Shankar (DW-3) and Dr. Subhash Chandra Upadhyaya (DW-4) were examined. According to these doctors, on 12.02.2006 Dr. Shiv Shankar (DW-3) was informed that appellant was weeping, talking to the wall and trying to run away and he was also making complaint that he was hearing some voice through his ears. Therefore, when such symptoms were found to be continuous in nature after 15.02.2006 permission was obtained from the Court for the treatment of appellant and after getting the permission he was referred to Dr. Subhash Chandra Upadhyaya (DW-4) who treated him as an outdoor patient. He was produced before Dr. Subhash Chandra Upadhyaya (DW-
4) on 22.04.2006, 13.07.2006, 27.10.2006, 05.11.2006 and 11.11.2006. In that period, he was kept in the mental ward of the jail and he was completely cured on 05.11.2006. It would be apparent that the appellant was arrested on 31.08.2005 and the jail authorities did not find any symptom of insanity up to 12.02.2006. Dr. Subhash Chandra Upadhyaya (DW-4) has accepted in cross-examination that if someone kills his close relative then after that incident due to shock such symptoms could be found with that accused, but he was unable to show the mental status of the appellant prior to 12.02.2006. In this connection, if case file of the trial court is perused then for the first time when the appellant was produced before the Court he prayed for 12 Criminal Appeal No.541/2007 some time to appoint the advocate to argue on framing of charges. On 12.12.2005, for the first time, an application was sent to the court that the behaviour of the appellant within the jail premises is unnatural. However, the appellant was produced before the court. He participated in the proceedings and appended his signature on the order sheets. On 03.01.2006, he prayed for some time to get his advocate appointed. On 13.01.2006, he informed the trial court that his sister has engaged one Mr. Vinod Chaturvedi, Advocate for him but since Mr. Vinod Chaturvedi did not appear before the court then Shri S.S. Rana, Advocate, was appointed from the side of legal services authority. Thereafter, the charges were framed. Again, on 15.02.2006, permission was sought by the jail authorities that the appellant may be treated by a psychiatrist and the trial court granted such permission. Thereafter, he was found completely cured in the month of November, 2006. Looking to the conduct of the appellant before the trial court, it would be apparent that no symptoms of insanity were found in the appellant soon after the incident. No such complaint was made by him before the court or even the presiding officer of the trial court did not find any abnormality in the behaviour of the appellant till the first application was received on 12.12.2005 whereas four months had elapsed after the arrest of the appellant and therefore after arrest of the appellant, for four months, no symptoms of insanity were found, hence, if any further treatment was given to the appellant when he was in jail then it cannot be said that he was suffering from insanity at the time of incident. On the basis of the 13 Criminal Appeal No.541/2007 aforesaid discussion where the appellant had run away from the spot when he knew that his brother deceased Balwant had died which indicates that at the time of incident he was not suffering from any insanity. Though no motive of the appellant could be established but only by that reason it cannot be said that he assaulted the deceased due to his insanity. On account of different factual position, the law laid down by the Apex Court in Shrikant Anandrao Bhosale (supra) cannot be applied in the present case and therefore the trial court has rightly discarded any advantage of Section 84 of Indian Penal Code to the appellant.
(15) Learned Additional Advocate General has submitted that it is the duty of the accused to prove that he was not capable of understanding his overt act due to unsoundness of his mind, however, if investigating officer had found that the accused was of unsound mind then such note would have been mentioned by him during investigation but it is apparent from the facts of the case that some mental problem was complained by the appellant to the jail authorities much after his arrest. In this connection, the judgment passed by the Apex Court in the case of "Siddhapal Kamala Yadav Vs. State of Maharashtra" [AIR 2009 SC 97] is referred. A little portion of para 8 of that judgment is reproduced as under:-
"The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution
14 Criminal Appeal No.541/2007 case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution has not to establish these facts."
(16) So far as the validity of trial conducted by the trial court is concerned, provisions of Sections 329 to 339 of the Code of Criminal Procedure may be considered. According to the provisions contained under Section 329 of the Code of Criminal Procedure if it is found that an accused is suffering from insanity or he is of unsound mind then the trial will be stopped and he/she would be referred to the psychiatrist and unless a report is received by the Magistrate or the Court that the accused is suffering from any unsoundness of mind then the trial may be stopped. In this matter, provisions of Section 329[1-A] are clear. In the present matter, the doctor of jail i.e. Dr. Shiv Shankar (DW-3) moved an application before the trial court that the appellant may be shown to the psychiatrist and the permission was granted. However, no report was received from Dr. Subhash Chandra Upadhyaya (DW-4) that the appellant was suffering from unsoundness of his mind and he was unable to understand the court proceedings. Looking to the evidence of Dr. Subhash Chandra Upadhyaya (DW-
4), he did not admit the appellant in the mental asylum. He did not give any opinion that the appellant was unable to understand the court proceedings or he was 15 Criminal Appeal No.541/2007 suffering from unsoundness of his mind as mentioned under Section 329(1-A) of Cr.P.C. On the other hand, looking to some symptoms that the appellant was suffering from various problems of his guilty consciousness that he himself killed his brother and hence he was treated by Dr. Subhash Chandra Upadhyaya (DW-4). Under such circumstances where it was not established before the trial court that the appellant was unable to understand the proceedings of the court or he was suffering from unsoundness of his mind then it was not necessary for the trial court to stop proceedings, hence, if rigorous and effective cross- examination is done by the counsel for the appellant due to factual difference, the judgment passed by the Division Bench of this Court in Dilip Bankar (supra) cannot be applied. In that judgment, it is held that the trial court should have recorded the finding or satisfaction that the accused ceased to be of unsound mind and he is in a fit condition to defend himself, otherwise the trial may not be appropriate and such trial was to be vitiated. In the present case, the second stage as shown in the judgment passed by the Division Bench in Dilip Bankar (supra) did not arrive. When the trial was not stopped and it was not established that the appellant was suffering from any stage of his unsoundness of his mind then there was no need to the trial court to give a certificate that now he is fit and he could understand the proceedings of the court. In this case, Dr. Subhash Chandra Upadhyaya (DW-4) did not give such a certificate that the appellant was suffering from unsoundness of his mind during the period of treatment or he was unable to understand the 16 Criminal Appeal No.541/2007 proceedings of the court. Hence, the judgment passed by the Division Bench of this Court in Dilip Bankar (Supra), which is related to the second stage of insanity and when the accused is cured, cannot be applied in the present case because it was not at all established that the appellant was suffering from any problem of unsoundness of mind during his period of treatment whereas he was suffering from some consequences of his guilty conscious.
(17) On the basis of the aforesaid discussion, it is apparent that appellant Sher Singh @ Mullu had assaulted the deceased Balwant with a spade causing four injuries. Out of them one or two were fatal in nature. He repeated the assaults three to four times until he was held by his father and therefore his intention is very much proved by the prosecution. Under these circumstances, where the appellant could not prove that due to unsoundness of his mind he was unable to understand his overt act at the time of incident he cannot get the advantage of Section 84 of IPC and the trial court has rightly convicted the appellant for offence under Section 302 of IPC. There is no reason for any interference in the conviction recorded by the trial court.
(18) So far as the sentence is concerned, a minimum sentence has been recorded by the trial court which is prescribed for the offence punishable under Section 302 of IPC. Under such circumstances, no further dilution can be done.
(19) On the basis of the aforesaid discussion, the appeal filed by the appellant cannot be accepted and consequently the same is hereby dismissed by 17 Criminal Appeal No.541/2007 confirming the judgment passed by the trial court. (20) The appellant is in jail, therefore, a copy of the judgment be provided to the appellant according to the provisions through Superintendent, Central Jail, Gwalior (M.P.). He may also be informed that he may prefer an SLP before the Apex Court through legal services authority/committee.
(N.K. Gupta) (S.K. Awasthi)
Judge Judge
(25/04/2017) (25/04/2017)
pd