Gauhati High Court
Pulu Mura vs State Of Assam on 14 May, 2003
Equivalent citations: 2004CRILJ458
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT P.G. Agarwal, J.
1. Criminal Appeal 127(J) of 2002 and Criminal Death Reference Case No. 2 of 2002 were heard analogously and disposed of by this common judgment and order.
2. In Sessions Case No. 97(T)/98, the accused appellant Pulu Mura, (hereinafter referred to as the accused) was charged for commission of the offence under Section 302, IPC on the allegation that in between the night of 14-2-1998 and 15-2-1998, he caused the death of his four children, namely, (1) Mantu Mura, (2) Kanchi Mura, (3) Sagi Mura and (4) Mangri Mura. The eldest of the four children was aged about 10 years and the youngest was about 3 years old. The prosecution allegation, as emerged from the evidence on record, is that the wife of the accused-appellant, Pulu Mura, left him and eloped with another person about 3 months prior to the occurrence and thereafter, the accused was residing in his house along with his four children. On the evening of 14-2-1998 the four children had gone to neighbours house to witness T.V. and they allegedly returned late. On the next date (day) morning the accused was seen sitting in the Verandah in his house, whereupon his father, Siva Mura (P.W. 1), who used to reside in a separate house in the same com-pound, enquired from him about the children as he (P.W. 1) had not seen the children The accused was armed with a dao and he informed P.W. 1 that he had killed his children, entered into the house of the accused. They saw blood marks all over the place and found the dead bodies of the four children of the accused lying there.
3. P.W. 5 is Dr. M.N. Gogol, who held autopsy over the dead bodies and found as follows :
"Monto Mura.
Injuries were as follows :
One lacerated wound in the left parital sculp of the skull of size 8 cm x 2 cm bone exposed.
Cranium and spinal canal, Sculp injury described under wound No. 1 skull fracture of the left parital bone of size 6 cm x 3 cm depressed fracture.
Membrace. Lacerated at the fracture side.
Brain : Brain Lacerated and haemorrhage from it."
Kanchan Mura.
Injuries :
(1) Incised wound in the upper part of the neck right side of size 8 cm x 1 cm muscle deep.
(2) One incised wound in the right parital sculp of sized 15 cm x 1 cm bone cut and brain matter out to the exterior.
(3) One incised wound in the chest wall upper part 7 cm x I cm muscle deep.
Cranium and spinal Canal : Sculp and skull injury described under wound No. 2 membrace cut under the injury No. 2.
Brain : Brain cut and haemorrhage from it under wound No. 2."
Sagi Mura INJURIES :
(1) One incised wound in the left parital region of the sculp of size 4 cm x 0.5.cm bone cut and brain matter out.
(2) One incised wound in the right scapular region of seized 10 cm x 2 cm bone cut.
(3) Incised wound in the left scapular region of size 8 cm x 2 cm bone cut in that region.
(4) One incise wound in the chin of size 3 cm x 0.5 cm bone cut.
Cramium and spinal canal : Sculp injury described under the wound No. 1 skull bone cut in the injury No. 1. Membrane cut under the wound No. 1. Brain cut and haemorrhage from it described under the injury No. 1. Brain cut and haemorrhage from it described under the wound No. 1."
Mongri Mura Injuries :
(1) Multiple bruises in the chest wall with blakish colour of the skin.
(2) Lacerated wound in the occipital region of the sculp of the skull of size 6 cm x 2 cm and bone exposed.
Cramium and spinal canal, Sculp injury described in the wound No. 2.
Skull occipital bone fracture (sic) of size 4 cm x 2 cm.
4. In the opinion of the Doctor, the deaths were due to shock and haemorrhage/comma resulting from the ante mortem injuries, which were caused by heavy blunt object in the case of Manto Mura and Mangri Mura and by heavy sharp cutting weapon in the case of Kanchan Mura and Sagi Mura.
5. The Gaonburah and other villagers came to the place of occurrence and they have deposed about the four dead bodies lying inside the house of the accused. In view of the oral and medical evidence on record and considering the age of the deceased and the nature of the injuries, the learned trial Court rightly held that all the four young children were victims of homicide. The medical evidence was not challenged.
6. In this case, there is no eye witness to the incident. The entire prosecution case rests on the circumstantial evidence and the extra judicial confession coupled with the recovery of weapon of assault from the accused-appellant. It may be mentioned here that in his statement under Section 313, Cr.P.C., the accused person has admitted that he did kill his four children in his own house and handed over the weapon of assault, i.e., the dao, to the police,. He has also admitted having made extra judicial confession before the P.Ws. So far as the circumstantial evidence is concerned, we find that the incident took place in the house of the accused appellant, where he was the only adult male member. The four other occupants were his children aged between 10 years and 3 years. The incident had taken place in between the night of 14-2-1998 and 15-2-1998 and at 6.00 am. on 15-2-1998, the accused was found sitting at his verandah with a blood stained dao, bow and arrows. The dead bodies were lying inside. The accused made an extra judicial confession before his father and the Gaonburah. The weapon of assault was produced by the accused. The learned trial Court relied on the circumstantial evidence as well as extra judicial confession and held that it was the accused appellant, who has killed his four children. In view of the categorical admissions and the statement under Section 313, Cr.P.C. coupled with other materials on record, we hold that the accused did kill his four children on the ill fated night.
7. In this case, the accused appellant had taken a plea that he committed the murder in a state of insanity. Section 84 of the Indian Penal Code reads as follows:
"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."
8. Let us, first of all, examine the material/evidence as regards the plea of insanity. The father of the accused Siva Mura, (P.W. 1) has stated that about 11/2 years prior to the occurrence, the wife of the accused had fled away and thereafter the accused became mad and he was removed from his regular job in the tea estate. P.W. 2, a neighbour, on the other hand, deposed that on being interrogated, the accused told them "that previous night his children had returned home at 12 midnight after enjoying a movie on TV somwhere and that he has not been in proper state of mind and so he killed his children". P.W. 3 too has deposed about the wife leaving the accused prior to the occurrence, but according to him, it was about 3 months prior to the Incident. P.W. 4 is the Investigating Police Officer and he was not asked anything about the state of mind of the accused at the time of arrest or during investigation. P.W. 5 is the Doctor, who held the autopsy.
9. In this case, there is no medical evidence on record to show or throw light as to the actual mental condition of the accused appellant just prior to the incident or after the incident or during investigation. The accused-appellant also did not pray for bail on that count. It may, however, be mentioned that while the trial was going on and the accused was in jail custody the Jail Superintendent obtained permission of the Court to send the accused to mental hospital at Tezpur and accordingly, the accused appellant was sent to mental hospital as per recommendations made under the medical report and the trial was stayed. He was subsequently discharged from Tezpur mental hospital and the trial proceeded. Learned counsel for the appellant has submitted that the medical certificate during that period was not considered by the learned trial Court, although the same would have thrown some light in the matter. The incident had taken place in the year 1998. From the records available with the case record, we find that the accused was admitted at the L.G.B. mental Institute and Health, Tezpur, Assam on 13-8-99 and he was released on 10th May, 2001. Thus the medical report, if any, will be in respect of the mental state of affair of the accused in 1999-2001, i.e. after 11/2 years of the incident. We have, however, perused the report of the Associate Professor of Psychiatry, Assam Medical College who had examined the accused and recommended his removal to Medical Hospital on 6th August, 1999 stating that the accused was suffering from ceriophernia. This report reads as follows:
"Phulu Murah Clv Hearing voices of people telling him that his wife and daughter had fled away etc. Sleep - sleep wake at night. No other behaviour. Oddities as per report of line Ward attendant.
MSE Auditory Halineination Pov F20 Rx (1) Fluhex 1 X BD D1 X 2 days 1 X TDS DL to be contd.
Comment to be reviewed on next Thursday.
Sd/-
Associate Professor of Psychiatry Assam Medical College."
10. We have heard the submission of the learned counsel for the appellant on the above report and were of the view that this report does not help us much.
In Halsbury's Laws of England insanity has been defined as follows:
"Insanity. Where it can be shown that a person at the time of his committing or omitting an act, the commission or omission of which would otherwise be criminal, was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act or omission, or as not to know that what he was doing was wrong, then such a person is not in law responsible for his act.
The question whether a prisoner, at the time when he committed an act or made an omission, was or was not insane so as not to be responsible according to law is a question of fact which the jury must determine under the direction of the Judge.
11. At this stage we may recapitulate the law laid down by the Apex Court as regards the plea of insanity:
PLEA OF INSANITY: The Hon'ble Supreme Court had the occasion to consider the provisions of Section 84, I.P.C. in the case of Ratanlal v. State of Madhya Pradesh, AIR 1971 SC 778 : (1971 Cri LJ 654), Sher Ali Wali Md. v. State of Maharashtra, AIR 1972 SC 2443 : (1972 Cri LJ 1523), Oyami Ayatul v. State of Madhya Pradesh, AIR 1974 SC 216 : (1974 Cri LJ 305). In the above decisions, the Apex Court has laid down the following guiding principles:
1. The Court shall presume absence of insanity.
2. Burden of proof of insanity is on the accused though it is not that heavy as that of the prosecution to prove an offence.
3. Every minor mental aberration is not insanity and unless the conguitive faculty of mind is destroyed as a result of unsound-ness to such an extent as to render one incapable of knowing the nature of his act.
4. The accused must suffer from legal insanity and not merely medical insanity.
5. The crucial point on which the un-soundness of mind has to be proved is the time when the crime is actually committed.
12. There is a clear difference between the medical insanity and legal insanity. In Mayajul Ali v. State of Assam, (1987) 2 Gauhati LR (NCC) 4 it was held:
"Prevalence of unsoundness of mind at the time of commission of crime is the measure in scale to extend the privilege of the Exception of Section 84, I.P.C. It must be independently made out that the accused was actually in a state of unsoundness of mind. No doubt previous record and subsequent developments may play parts as circumstances to the nearness of the people, but that should not be made ground by Court to presume prevalence of unsoundness of mind at the time of commission of the crime. Satisfactory evidence must be in regard to establish the plea and liberal consideration will prove dangerous for criminal trial."
13. In a recent case of T. N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 : (AIR 2001 SC 3828) the Apex Court has reiterated its earlier decision including the one in Dahyabhai v. State of Gujarat, AIR 1964 SC 1563 : (1964 (2) Cri LJ 472) the Apex Court further observed:
"When a plea of legal insanity is set up, 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 was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."
14. In the present case, we find that the accused has not led any evidence in support of his plea of insanity. There is nothing on record to show that the accused was of unsound mind at or about the time of incident. The wife of the accused had fled away long before the incident. It is submitted that because of his mental state, he lost his regular job in the tea estate. However, from the evidence on record, we find that after the accused lost his job in tea garden, he managed to get another job and at the relevant time, he was working in a plywood factory. The accused may have been upset at the elopement of his wife but still he was managing his life in a regular manner. The immediate cause of killing the children was that the children had remained away from the house till late night for watching the movie in the TV which the accused person did not appreciate. He was upset by the above conduct of his children and took the extreme step. The relation of the accused with his children was of a normal father and this cannot be the conduct of an insane person. Further, we find that the accused, in the absence of his wife, was not only managing himself, but was earning too his livelihood by working in the plywood factory. He was also successfully managing the four young kids left behind by the wife. He might have been suffering from slight depression, but there is nothing on record that the behaviour of the accused was abnormal prior to the incident. After the incident also, the accused was behaving normally and he never became violent. He made a clean confession before his father and the Gaonburah etc. and during investigation also, neither the police nor the Court noticed any abnormal behaviour. The first sign of abnormal behaviour occurred after 1 1/2 year of the incident and this may be due to the affection of his own children. From the materials on record, it cannot be held that the accused was of unsound mind or he did not understand the implication of what he was doing. The accused was not really unsound within the meaning of Section 84 of the I.P.C. and the accused is not entitled to the benefits. Accordingly the plea of insanity raised by the accused appellant stands rejected.
15. In view of the materials available on record, we hold Pulu Mura guilty of offence under Section 302, I.P.C.
16. The accused has been sentenced to death by the learned trial Court on the following count:
"In the present case it was not as if in the heat of moment the accused dealt with dao blows with any of his child, but it is a case where he gave multiple blows causing death of four innocent children one by one. The reasonable expectation of the society from the Court in such type of quadruple murder is deterrent punishment. The accused thus deserves death sentence conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. He be hanged by the neck till he is dead."
17. The next question which requires our determination is whether the death sentence as awarded by the trial Court is the appropriate one. In a recent case of Lehna v. State of Haryana, (2002) 3 SCC 76, the Apex Court held that In view of Section 354(3) of the I.P.C., the normal punishment for murder is imprisonment for life and death penalty is an exception. The Court is required to state the reason for the sentence awarded and in the case of death sentence, "special reasons" are required to be stated. That is to say, only special facts and circumstances will warrant passing of the death sentence. Thus, we find that the Courts are no longer required to give reasons for not awarding death penalty, but in case, the death is imposed, special reasons are to be stated.
18. In the case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : (1980 Cri LJ 636) the Apex Court directed application of the following guidelines for cases, where the question of imposition of death sentence arises:
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
19. In a latter case of Macchi Singh v. State of Punjab, (1983) 3 SCC 470 : (1983 Cri LJ 1457) the Apex Court added two more tests to determine the rarest of rare case:
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
20. We have been tempted to quote the following observation of the Apex Court in the case of Lehna (2002 (3) SCC 76) (supra) before embarking upon the fact and circumstances of the present case:
"In rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances.
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward, or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath, or in case of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.
A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the Court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e.the Judge that leads to determination of the lis."
21. In this case, aggravating circumstances appearing against the accused are :
(i) The accused caused the death of as many as four human beings.
(ii) All the victims were helpless children, who were dependent upon the accused for their survival, safety and protection.
(iii) No act of the victims led to their death.
(iv) The public at large were aghast when the father was found to have killed his four children in cool blooded manner at his own house.
Mitigating Circumstances :
i. There is no motive on the part of the accused to kill his own children.
ii. Although the accused is not entitled to protection under Section 84 of the IPC, the fact remains that he had been suffering from some mental illness (medical) as his wife had deserted him leaving him with the care of four minor children.
iii. Because of the mental deprivation the accused lost his regular job in the tea estate.
iv. Watching a movie in the neighbours' house on a TV till late at night provoked the accused to take the extreme step.
v. The accused had made a clean breast of the entire affair and remained cool. He did not become violant or tried to assault any one in the morning. Instead he told the truth, whoever asked and enquired from him about his children.
22. The learned counsel for the accused has submitted that the facts of the present case are more or less Identical with that of Janaki Das v. State (Delhi), 1994 Suppl 3 SCC 143 : (1995 Cri LJ 1464). In the above case the accused had killed his wife and four children as he was in grave financial crisis. The Apex Court observed :
"In this case, there is hardly anything to adjudicate. The appellant has owned his misdeeds and has stated about his mental condition, before he administered cyanide to his children, in a very frank and straightforward manner. He has made grievance against none. In such a situation there is hardly anything to examine, whether the charge of murder has been proved against him. The only question which remains to be considered is as to whether the sentence of death is the only punishment appropriate for the appellant. If one goes with the number of deaths, the appellant deserves the maximum penalty provided for such an offence. Burt reading his statement and appreciating his conduct from stage to stage, it is apparent and obvious that he is a mental case. He found out a solution of his miseries in good faith, which can hardly be said to be a solution to escape the financial liability created by him. But one thing cannot be disputed that he committed the offence in question not with an deliverance from the day to day strain of life he being financially crippled. If he himself had not stated the details of the manner of occurrence in his statement under Section 313 of the Code before the trial Judge, the total investigation made by the police had led only to the fact that at his instance three dead bodies which had been buried for six months were recovered from the house of the appellant."
23. In the case of Bachhan Singh (1980 Cri LJ 636) (supra), the Apex Court had approved that the accused suffering from some mental illness is a mitigating circumstance for not awarding death sentence.
24. In the instant case, we do find that the accused-appellant before us was, in fact, mentally disturbed and he could not appreciate the gravity of his conduct. After examining the mitigating and non-mitigating circumstances we are of the view that the accused-appellant before us does not deserve the sentence of death and in the facts and circumstances of the present case, the death sentence is not warranted. Accordingly, the death reference is answered in the negative in favour of the appellant. The appeal is partly allowed so far the sentence is concerned. The sentence of death awarded by the Court below is replaced by the sentence of imprisonment for life and to pay a fine of Rs. 1,000/- and in default to, further imprisonment for one month.
25. A copy of the order be sent to the Superintendent of Jail, Dibrugarh, and also the Sessions Judge, Tinsukia. Send down the records. The Criminal Appeal and the Death Reference both are disposed of as ordered earlier.