Madhya Pradesh High Court
Azhar Khan @ Maulana vs State Of Madhya Pradesh on 11 May, 2006
JUDGMENT S.K. Kulshrestha, J.
1. This appeal is directed against the judgment dated 3-7-1998 of the learned Sessions Judge, Ujjain in Sessions Trial No. 234/96 by which the appellant has been convicted under Section 302 of the IPC on three counts and has been sentenced to imprisonment for life and fine of Rs. 500/- on each count: in default of payment of fine to suffer further RI for three months. He has also been sentenced under Section 307 for attempting at the life of Firoz Khan and sentenced to RI for 5 years. All the sentences have been directed to run concurrently.
2. The appellant was prosecuted for having committed murder on the night intervening 27th and 28th of May, 1996 of Azhar Khan, Afridibee and Arif Khan and attempting murder of Firoz Khan. According to the prosecution, at about midnight there was discussion in the family in which while the other members of the family wanted to give the Tempo on contract for Rs. 3,000/- a month, the appellant had insisted that he would ply the same and hopefully earn about Rs. 200/- per day. After the discussion when everybody was asleep, (P.W. 2), Firoz Khan woke up and heard the alarm raised by Afridibee (deceased). It was about 3 or 3.30 A.M. Arif witnessed that Afridibee and Arif were burning and there was fire on the bed as someone had poured diesel on the bed and set the matress ablaze. Athar was also shouting. It was alleged that accused was assaulting Azhar by means of an iron pipe. Arif managed to jump from the bed but the accused assaulted him too. He brought Afridibee out. Athar also came out bringing and jumped into a water tank with the result the fire extinguished. The accused managed to run away.
3. On learning about the incident, the neighbours collected. Firoz, Athar and Afridibee were taken in attempt to the Hospital where police also arrived. Firoz Khan lodged P-3 Dehati Nalish in the Hospital itself. The report was recorded by the Station House Officer on the basis whereof the offence was registered at P.S. Mahakal. (P.W. 8) Prasanna Chaturvedi Additional Tehsildar and Executive Magistrate was called to record the dying declaration and accordingly dying declarations Exs. P-16 and P-17, respectively of deceased Athar and Afridibee, were recorded. (P.W. 11) Anoop Mishra also recorded the statements P-24 and P-25 of Afridibee and Athar under Section 161 of the Cr.PC.
4. On injured having succumbed to their injuries, their bodies were forwarded for post-mortem examination. Dr. Umesh Sharma (P.W. 1) performed autopsy on the body of Athar s/o Anwar Khan and Afridibee wife of Anwar Khan and gave report Exs. P-1 and P-2. Dr. L.N. Gurjar (P.W. 5) performed autopsy on the body of Mohd. Arif and gave report Ex. P-10. Both the experts opined that death had occurred on account of shock. After completion of the investigation the accused was prosecuted. Although the accused pleaded that he was not guilty, he was convicted and sentenced as hereinabove stated. It is against the said conviction and sentence that the present appeal has been filed.
5. Learned Counsel for the appellant has pointed out that as evident from the report dated 12-11-96 of the Chief Medical and Health Officer, Ujjain addressed to the Trial Court, the accused was found mentally deranged and as required by the provisions of Sections 328 and 329 of the Cr.PC, the trial was kept in abeyance pending treatment of the accused. On 4-2-97, the Trial Court sought report in respect of the mental condition of the accused and upon being wholly satisfied that the accused was in fit mental condition for being proceeded against and that there was no impediment in holding of the trial against the accused, by order dated 12-9-97, it directed that the trial shall proceed against the accused. The record containing the statements of the witnesses examined by the Trial Court to gather the mental state of the accused forms part of the record of the trial.
6. The contention of the learned Counsel for the appellant is that notwithstanding that the Court had subsequently proceeded as required under Section 331 of the IPC, the Court should have once again given finding with regard to the mental condition of the accused under Section 329(2) of the Cr.PC. We are afraid that such a stage is not contemplated once the Court proceeds with the trial upon its satisfaction that the accused is capable of making his defence. The requirement with regard to the trial of the fact of the unsoundness of mind, and incapacity of the accused to be part of the trial before the Magistrate or the Court is only that the record with regard to the mental unsoundness of the person and subsequent finding of the Court about the soundness of mind and proceeding with the trial should form part of the record of the Court so that the same is available to the Superior Court for examination. It does not require that the Trial Court shall give finding in regard to unsoundness of the mind at the conclusion of the trial.
7. Learned Counsel for the appellant has next contended that the main witnesses to the incident having not supported the prosecution, the only evidence on which the prosecution has relied is the evidence of dying declaration and the statements recorded by the Police. Learned Counsel submits that even in the statements given by the deceased the fact that the accused was deranged has been highlighted and, therefore, even if the Court comes to the conclusion that the accused is the person who was responsible for causing the fire resulting in the death of three and injury to one, it was only on account of this mental condition that he committed the said act and, therefore, he cannot be held responsible in law. Learned Counsel for the State, per contra, submits that the incident was preceded by discussion in which the accused was the only disagreeing party and thereafter the accused took out diesel from the vehicle poured the same and lighted match which shows that he knew the consequence of his act and was fully conscious of what he was doing.
8. The prosecution examined (P.W. 2) Firoz Khan, brother of the deceased, as the eye-witness (P.W. 3) Nisar Ahmed and (P.W. 12) Asar Khan as neighbours. Nisar Ahmed and Asar Khan had immediately reached the spot and were informed by Firoz Khan and others about the incident. All these witnesses did not support the prosecution and were declared hostile. Bereft of the evidence of the eye-witnesses and other circumstantial evidence, the prosecution is left only with two dying declarations Exs. P-16 and P-17 of Athar and Afridibee and their statements under Section 161, which now have acquired the status of dying declaration. The dying declarations Exs. P-16 and P-17 were recorded by (P.W. 8) Prasanna Kumar Chaturvedi, Additional Tehsildar cum Executive Magistrate while Exs. P-24 and P-25, statements under Section 161, Cr.PC, were recorded by Anoop Mishra (P.W. 11).
9. (P.W. 8) Prasanna Kumar Chaturvedi has deposed that on 28-5-96 he was posted as Additional Tehsildar and Executive Magistrate. On that day, he received a written intimation from P.S. Mahankal at 5.30 A.M. that some people had got burnt and that their statements were to be recorded in Civil Hospital, Ujjain. He, therefore, proceeded to the Hospital where he recorded the statement of Akhtar Khan which is Ex. P-16. He had recorded the statement in the question and answer form. Thereafter, he recorded the statement of Afridibee which is Ex. P-17. In his cross-examination he has stated that at the time of the recording of the statements doctors were present and the persons were giving proper answers and their mental condition was proper. He had, therefore, not obtained a certificate from the doctor because he was himself satisfied about the mental condition and in the requisition itself there was such a certificate of the doctor. In respect of the statements Exs. P-24 and P-25 respectively of Afridibee and Athar Khan, (P.W.11) Anoop Mishra has deposed that he was Station House Officer in May-June, 1996. In the morning of 28-5-96 he had gone to the place of the incident and arranged for the dying declaration of the persons who were burnt. He had also recorded the statements. The statements were P-24 and P-25.
10. In view of the recitals contained in Exs. P-16, P-17, P-24 and P-25, learned Counsel for the appellant submits that even the deceased stated that the mental condition of the accused was not fit which shows that it was in a state of unsoundness of mind the act was committed which is not culpable. Under these circumstances, contends the learned Counsel, the conviction of the appellant is not sustainable. Reference has also been made to the testimony of Dr. Rajesh Sanghvi (C.W. 4) and father of the accused (D.W. 1) Anwar Khan. Insofar as (C.W. 4) Dr. Rajesh Sanghvi is concerned, he has clearly stated that accused was not giving proper answers to the questions put to him. He was recluse. He was suffering from Schizophrenia. In the evidence of (D.W. 1) Anwar Khan, he has stated that right from childhood the condition of accused was that of a mad man. Half the time he used to remain like a normal person and the other half, abnormal. During insanity he used to eat as much as a person eats in three or four days. He had also taken him for treatment.
11. From the above testimony and the act of the accused leading to the offence we have to see whether at the time of the commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act, or that what he was doing was either wrong or contrary to law.
12. The evidence referred to by the learned Counsel is the evidence with regard to mental aberration and abnormality but does not refer to any unsoundness at the time he actually committed the offence. While it is true that there is evidence of his father (D.W. 1) Anwar Khan that his moods used to change, nothing has been indicated to show that he ever displayed any violent temper and acted violently requiring force to be used to keep him calm. Even the medical evidence of (C.W. 4) Dr. Rajesh Sanghvi though described him as a Schizophrenic, but otherwise calm. Thus, there was no history suggestive of the fact of the appellant ever acted violently or of having become of uncontrolled temperament. This indicates that from his behaviour described, one cannot infer that whatever he did, he did not know the nature of his act or that what he was doing was not in accordance with law.
13. The fact that there was a dispute with regard to the disposition of the Tempo on monthly contract as revealed by Ex. P-16 and that the accused was seen standing near the bed with lighted Torch in his hand at the time of the incident and that he ran away when people woke up, clearly indicates that he was conscious of the happenings around and the fact that what he was doing was wrong and was contrary to law. Section 105 of the Evidence Act reads as under:
Burden of proving that case of accused conies within exceptions.- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
From the above provision, it is clear that the burden of proving the existence of the circumstances bringing the case within the general exception is upon the accused. While it is not necessary for the accused to prove the defence to the hilt as is required by the prosecution to prove its case and the accused can discharge the burden by preponderance of probabilities, the accused in the present case has not been able to establish even by preponderance of probabilities that the accused at the time of the commission of the offence was incapable of knowing the nature of the act by reason of unsoundness of mind.
14. In the result, we find no substance in this appeal. The appeal is dismissed.