Himachal Pradesh High Court
Krishan Dutt Alias Krishan Chand vs State Of H.P. on 18 December, 1990
Equivalent citations: 1992CRILJ1065
JUDGMENT Bhawani Singh, J.
1. The accused has challenged his conviction by the Sessions Judge, Hamirpur in Sessions Case No. 15 of 1982. He was prosecuted in F.I.R. No. 25 of 1982 under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 500/-.
2. Briefly, the prosecution case is that the deceased (Chaudhari Ram), an agricultrist, was also practising witch-craft. The accused had also been going to him for treatment. On 19-7-1982, at about 6 a.m., the deceased was visited by the accused in his village and asked him about his buffalo which was not giving milk. He demanded money from the deceased on the ground that the deceased had done something wrong to the buffalo. The deceased not only denied having done anything wrong to the buffalo, but also declined to pay any money to the accused. At this time, the deceased was sitting in the corner of his Verandah. The accused gave a stick blow on the head of the deceased and in order to rescue himself, the deceased went to a room of his house where he was given two more blows on the head with a stick. As a result of this, blood started oozing out of the injuries and his wife Parwati Devi (P.W. 5) and granddaughter, Tara Devi (P.W. 4) were present at the spot and when they tried to rescue the deceased, the accused asked them not to intervene, otherwise they would also be finished. The accused left the place along with stick and Taro Devi (P.W. 4) was sent to bring Tulsi Ram (P.W. 6) who reached the spot. In the mean-time, the deceased was removed by his wife Parwati Devi and the grand-daughter, Taro Devi to the Verandah of his house. As a result of stick blows, the deceased had become unconscious and succumbed to injuries after some time. His shirt (Ext. P2), Jacket (Ext. P3), Underwear (Ext. P4) and Moonani (Ext. P5) also became blood stained like bed sheet (Ext. P6) and the three pieces of clothes (Ext. P7 to Ext. P8) that were lying near the place where the deceased was sitting.
3. Information of this incident was given to Pardhan, Charan Dass (P.W. 7) by Jai Nath (P.W. 17), who, on visiting the spot, found the deceased dead. Accordingly, ruqua (Ext. PH) was sent to the Police through Sant Ram (P.W. 2) which was received by M.H.C., Police Station, Barsar. On this basis, First Information Report (Ext. PL) was recorded and Baldev Krishan (P.W. 13) came to the spot. He collected blood-stained earth from the Verandah and the room and put the same in a 'Dibba' (box) (Ext. P10) yide seizure memo. (Ext. PE) in the presence of Dhani Ram (P.W. 3) and Salig Ram. Similarly, bed-sheet (Ext. P6) and the three pieces of clothes (Ext. P7 to Ext. P9) were sealed in a parcel and taken into possession vide seizure memo. (Ext. PF). He also prepared the inquest report (Ext. P8) in the presence of Om Prakash and Tulsi Ram (P.W. 6). The investigation was thereafter conducted by S.H.C., Moti Singh (P.W. 16).
4. The dead body was subjected to post mortem examination by Dr. D.S. Dhiman (P.W. 1). According to his post mortem report (Ext. PA), there were three lacerated wounds on the skull over the right side and midline of the deceased. One of the injury was on the left side at the occipital parietal region of the size of 3" in length. The other two wounds were of 2" in size and it was found that there was enzyme reaction under-line and the underlying bone was fractured. The injuries were ante-mortem and in his opinion, the deceased died of the head injury, although, Chemical Examiner's report indicated presence of alcohol in the body.
5. The Investigating Officer also prepared site plan (Ext. P.W. 16A). A site plan (Ext. PJ) was also got prepared from the Patwari from whom copy of Jamabandi (Ext. PK) was also obtained. The accused was arrested the same day and during Police Custody, he made disclosure statement (Ext. P.W. 16/B) to the police (sic) which led to the recovery of stick (Ext. P1). It was taken into possession vide recovery memo (Ext. P.W. 16/C) in the presence of Dhani Ram (P.W. 3) and Salig Ram. Sketch of the same (Ext. PI) was also prepared (Ext. PG). Site plan relating to the place of recovery of stick was also prepared (Ext. P.W. 16/D). The Viscera of the deceased was sent to the Chemical Examiner along with soil, bed sheet, pieces of clothes, stick, shirt, Jacket, underwear and Moonani. As per the report, alcohol was found in the contents of stomach, large and small intestines, liver, Spleen and kidney. Seriologist's report pointed out the presence of human blood on the articles except the bamboo stick, where on blood stains were found to be disintegrated, so its origin could not be determined.
6. On completion of investigation, challan was filed for the prosecution of accused and when it came before the trial Judge, the brother of the accused moved an application pointing out that the accused was not mentally sound, therefore, was not able to defend himself. The trial Judge referred the accused to the Chief Medical Officer to be examined by a Board of Doctors including a Psychiatrist. The Board found the accused suffering from Chronic Schizophrenia and was mentally unsound to defend himself. The proceedings were postponed under Section 329 of the Code of Criminal Procedure and it was on receipt of communication dated 7-4-1988 from the Medical Superintendent, Punjab Mental Hospital, Amritsar that the accused had stablized under treatment and as per the committee consituted for the purpose of examining the case of the accused, trial could be commenced as the accused was fit to stand the same.
7. The accused was charged under Section 302 of the Indian Penal Code. He pleaded not guilty to the charge and claimed to be tried. The trial ended in the aforesaid conviction and sentence of the accused.
8. Shri T.R. Chandel, learned counsel for the accused, submits that the judgment deserves to be set aside, since the trial Judge has committed gross error in evaluating and appreciating the evidence available on the record of this case. More over, according to the learned counsel, the case falls within the province of S. 84 of the Indian Penal Code, so, legally no offence has been committed by the accused and his conviction is, therefore, liable to be set aside. In order to examine the submissions of the Id. counsel, it is necessary to review the evidence in the case.
9. Sant Ram (P.W. 2) is a Member of Gram Panchayat Larha. He was sent by Charan Dass (P.W. 7), Pardhan Gram Panchayat, with a Ruqua which he gave to Moharrir Head Constable for the registration of the case. He does not know whether the accused used to get fits of insanity and was removed from service on that ground. However, he states that the deceased was 'Chela' and used to cure and treat patients of 'Opera' and used to give 'Dhooni" etc. for such treatment.
10. Dhani Ram (P.W. 3) was joined by the Police in the investigation. He has witnessed the recoveries in this case. He states that in his presence the Police took into possession blood stained earth from near the dead body of the deceased, three pieces of clothes and 'Chadar' (bed-sheet) stained with blood. They were sealed in a packet and the blood stained earth was taken in a 'Dibba' (box) and sealed. Seizure memos, regarding the same were prepared (Exts. PE and PF). He states that Salig Ram was also present at that time. According to him, a stick was found lying near the dead body of the deceased and the same was taken into possession and sealed in his presence. This fact is in variation of the version given by other witnesses, realising that the witness has changed his earlier version, he was declared hostile. During his cross-examination by the Prosecutor, he reasserted that the stick (Ext. P1) was not recovered from the bushes near the house of Bhagwan Dass and disclosure statement (mark Y) was not read out to him, although, the same bears his signatures. He also states that Krishan Dutt did not sign the disclosure statement in his presence and that the recovery memo, (mark Z) was read out to him before signatures. During his cross-examination by the defence counsel, he states that the accused was employed as a teacher during 1975-76 and got fit of insanity when he was serving towards Shimla side. He also admits that the accused got treatment in Snowdon Hospital, Shimla for insanity and was also given electric shock in Mental Hospital, Amritsar about eight year back. Thereafter, he was employed and posted at Nadaun and attended the school for fifteen days and remained absent for fifteen days in a month. He also admits that the deceased was a 'Chela' and used to treat cases of 'Opera'. The accused had no enmity with the deceased. Finally, he stated that in the village, people generally talked as to what had happened to the mind of the accused who had got good education and was employed as a teacher.
11. Taro Devi (P.W. 4) is the granddaughter of the deceased. She states that on 19-7-1982 at about 6 a.m. when she came after fetching water, the deceased was sitting in the corner of the Verandah while the accused was standing there. The accused gave a blow with a bamboo stick on the head of the deceased when she was sitting in the Verandah. The accused followed him inside the room and gave him two stick blows inside the room also. All these blows were given on the head and her grand-mother Parwati Devi (P.W. 5) was also present at that time. They tried to intervene, but the accused threatened that in case they intervened, they would also be beaten. The deceased became unconscious and blood started oozing from his head. The accused fled away to his house along with the stick. She raised hue and cry and went to Master Tulsi Ram, who came to her house. The house of the accused is at a distance of one hundred yards from her house. The deceased used to treat the cases of 'Jadoo Tona' and 'Opera'. The accused came and all of a sudden he started beating the deceased without any exchange of words and they became perplexed as to why the accused had started beating the deceased, especially when there was no earlier dispute between them.
12. Parwati Devi (P.W. 5) has differed from the version of Taro Devi (P.W. 4) by stating that when the accused came to the deceased, he started asking why his buffalo was not giving milk and demanded money from the deceased for having done something wrong to the buffalo. The deceased told that he had not done anything to his buffalo, therefore, he would not pay any money. The accused gave blow to the head of the deceased and then followed him into the room where two blows were given. The occurrence was witnessed by Smt. Taro Devi (P.W. 4) also.
13. In cross-examination, she states that the deceased had never sold any buffalo to the accused nor there was any loan transaction between them. There was also no enmity between them. The accused was employed as a teacher and she did not know whether the accused used to visit the deceased for getting treatment for his mental disorder and she did not know that the accused was suffering from mental insanity, since he belongs to another village. She also felt astonished as to why the accused was beating the deceased, since there was no earlier enmity or cause for the same.
14. Tulsi Ram (P.W. 6) was employed as a teacher in 1982. He also reached the place of occurrence and was told by Parwati Devi (P.W. 5) that the deceased was beaten with a stick by the insane man, who is son of Havildar Basant Ram.
15. Charan Dass (P.W. 7) is the Pardhan, Gram Panchayat. He states that on 19-7-1982, Jai Nath came to his house and told him that the deceased had been killed by the accused. On reaching the spot, he found that Chaudhri Ram was lying dead. He sent Ruqua (Ext. PH) through Sant Ram (P.W. 2) to the Police when on telephone, the Police told him to send the information in writing. He admits that the accused was B.Sc. and was a teacher. He also states that the villagers used to talk that the accused was a mental case and that despite good education and job, something had gone wrong with him, since he acted like a mad man.
16. Dr. D.S. Dhiman (P.W. 1) has conducted the post mortem examination of the deceased and noticed the injuries already described. According to him, the deceased died of these head injuries which could be caused with stick (Ext. P1).
17. Kartar Singh (P.W. 12), Baldev Krishan (P.W. 13) and Moti Singh (P.W. 16) have stated about the investigation of the case by them.
18. On the other hand, the accused has denied the commission of the offence in his explanation under Section 313 of the Code of Criminal Procedure. In answer to question No. 39, he says :
I am innocent and should be set free as soon as possible. I did not commit murder of Chaudhari. I further state that I have understood the evidence which was recorded in my presence.
19. The accused has also examined four witnesses in defence. Dr. R.S. Dhatwalia (D.W. 1) is Block Medical Officer, Bhoranj. He is a Psychiatrist in the hospital at Bhoranj financed by World Health Organisation for Research Activities in mental health, and he holds fellowship of this Organization in mental health. He states that he knew the accused since he examined him number of times. According to his disgnosis, this is a case of chronic schizopharenia. He was of un-sound mind as such, he was unable to defend himself in the Court of law. He was referred by him to the Mental Hospital, Amritsar. It was difficult to pin-point as to since when the accused had been suffering from this disease, but when he examined him from 20-11-1982 to 23-11-1982, he found him suffering from chronic schizopharenia. Patient of chronic schizopharenia may have delusions, hallucinations, circumstantiality, and flights of ideas. Some times, these patients become aggressive and violent to the extent, that they may attempt homicide or suicide. While committing such acts, they lack insight and the possibility of long duration of illness could not be ruled out. In case the disease is of long duration, say more than six month, it is called chronic disease. The patients suffering from schizopharenia some time behave normally under the lucid interval. They do not remain under the fit of insanity all the time, but it is also not correct that every patient suffering from schizopharenia will have lucid intervals.
20. Om Prakash (DW 2) is the Lumbardar of the area under which the village of the accused also falls. He also states that the accused was suffering from insanity while he was working as a teacher. He left the job and came to his house. The deceased, accordingly to him, was a witch doctor (Chela). The accused used to go to his house for treatment by witch craft. During those days, he was constructing a house at a distance of about 100-150 yards from the house of the deceased. He saw the accused coming from the house of the deceased. The accused did not respond, when he was called by him. The accused was bare-footed at that time and was wearing a 'Kachha'. He was going in fast speed. He did not see anything in his hand. He went to the place of the deceased where Police had also come. The wife of the deceased told the Police that the deceased was given stick blow by the accused and the stick was found lying at the place of occurrence. The father of the accused used to take him to witch doctor or hospital for treatment and there from he inferred that the accused was suffering from insanity. In 1980 or 1981, the accused was taken to the hospital at Shimla by his brother in his presence.
21. Hans Raj (DW 3) is the elder brother of the accused. He states that the accused was brought to him to Shimla by one of his colleagues. At that time, the accused was wearing torn clothes and did not even recognize him nor talked to him. He took him to that department of the hospital where mental cases are treated. He was given medicines for fifteen days, but the accused did not take them. He fled away from his house after sometime. On enquiry from the hospital, he was informed through letter dated 22-10-1986 (mark X) that the record for 1975 was not available. In June, 1976, the accused was taken to Mental Hospital, Amritsar also where he was given certain medicines and electric shocks. The accused ran away from the hospitals on the second day of his admission.
22. Thakur Dass (DW 4) has also stated about the behaviour of the accused as well as his treatment by the deceased.
23. From the perusal of the evidence in this case, it is established that the deceased was killed by the accused as a result of Danda blows given on the head, the witnesses of the prosecution on this aspect are quite clear in their versions and their statements cannot be doubted on this account. The recovery of Danda (Ext. P1) is not established since the witnesses have given verying versions on this account. However, it appears that the accused left the Danda (Ext. P1) at the same place after hitting the deceased and it was recovered there during the investigation.
24. The principal question for determination in this case is whether it can be said that the accused was suffering from insanity at the time of commission of the offence? Answer to this question, in our opinion, is in the affirmative. The evidence on this aspect is sufficient. The accused had been suffering for quite some time as appears from the statements of numbers of prosecution witnesses and the defence witnesses, more particularly, Dr. R.S. Dhatwalia (DW 1). It is also there in the evidence that the accused used to visit the house of the deceased for treatment. If one looks to the statement of Dr. R. S. Dhatwalia (DW 1) and more particularly, the characteristic of the disease given by him, the behaviour of the accused, completely answers that kind of description. The accused had not purchased any buffalo from the deceased nor there is any evidence that the accused had a buffalo that was not giving milk during those days, therefore, this kind of evidence is thoroughly doubtful and there is also variation on this aspect between the statements of Taro Devi (P.W. 4) and Patwari Devi (P.W. 5). They are eye-witnesses to the occurrence, however, Taro Devi (P.W. 4) states that the accused started beating the deceased without any prior altercation, whereas Parwati Devi (P.W. 5) states to the contrary. But both these witnesses say that they were thoroughly confused and did not understand why the accused had started beating the deceased when there was no past enmity or quarrel between them. It appears that the action of the accused was quite sudden in view of the statement of R. S. Dhatwalia (D.W. 1) that the behaviour of such kind of patients is abrupt, it is established that the accused committed the offence while he was suffering from insanity.
25. Our examination shows that the Id. Sessions Judge did not correctly assess the evidence. Moreover, the conclusions drawn are faulty, as a result of which, the case has not been correctly decided. The result is, there is merit in this appeal and the same is accordingly allowed and the conviction of the accused is set aside. He is acquitted of the charge.
26. Now, the question arises whether the accused should be set free? On 15-6-1990, a reference was sent to the Superintendent, Model Central Jail, Nahan, where the accused is at present lodged after his conviction, to submit a report pertaining to the soundness of mind of the accused, keeping in view his conduct, behaviour and medical record during his stay in jail. It was also ordered that the accused would be produced before the Head of Department, Psychiatry Indira Gandhi Medical College, Shimla and in case of his non-availability, before the next senior most Doctor in the Department for examination and opinion as to the soundness of his mind. Accordingly, this information has been sent to this Court by the Superintendent, Model Central Jail, Nahan, along with the medical certificates and the sum total of these communications is that the accused is suffering from the mental disease of serious dimensions. It is also informed that a bed has been reserved for shifting the accused to Mental Hospital, Varanasi (U.P.) against Himachal Pradesh quota, by the Director of Health Services.
27. In these circumstances, we feel that the accused cannot be set free, since it may pose danger to the public, so, it is in the interest of justice that the accused is directed to be shifted to the Mental Hospital, Varanasi (U.P.) where the State Government has already reserved a seat for him. Thereafter the State Government will deal with the case of the accused in accordance with the provisions of Section 338 of the Code of Criminal Procedure.
We direct accordingly.