Madhya Pradesh High Court
Anju@Anjana vs The State Of Madhya Pradesh on 4 December, 2019
Equivalent citations: AIRONLINE 2019 MP 1908
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
1
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(D.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA &
SHRI SHAILENDRA SHUKLA)
CRIMINAL APPEAL No. 197/2011
Anju @ Anjana
Appellant
Versus
State of Madhya Pradesh
Respondent
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Shri Gulab Sharma learned counsel for the appellant
Shri Anil Ojha learned counsel for the respondent/State.
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Whether approved for reporting :
JUDGMENT
(Delivered on 4/12/2019 ) PER PRAKASH SHRIVASTAVA 'J'.
By this appeal under Section 374 of Cr.P.C. appellant has challenged judgment of First Additional Sessions Judge Neemuch dated 5/1/2011 in Sessions Trial No. 103/2009 convicting the appellant for offence under Section 302 of IPC and awarding the sentence of life imprisonment with fine of Rs. 500 and default imprisonment of one month.
2/ The appellant has been convicted for committing murder of her two children namely Karan @ Gudda age 9 years and Ayushi age 7 years.
3/ Prosecution case is that on 7/8/2009 at 8.30-9.00 a.m. a report was received from Prahlad Singh that appellant being his 2 wife resides with him and that he has 9 years old son Karan Singh @ Gudda and 7 years old daughter Ayushi. On the day of incident his son Karan was standing near him and daughter Ayushi was with appellant then appellant had taken Karan also inside the room and locked the room from inside. He had heard his son Karan shouting 'papa' and had found that the door of the room was closed from inside. He had tried to push the door but the door did not open then his uncle Mohan Singh etc. had opened the door and it was found that appellant was having an iron 'Musal' and Karan Singh and Ayushi were lying unconscious having injuries on the head and bleeding. Apart from the appellant and two children there was no other person inside the room and appellant had caused injuries to the two children. Children were taken to the hospital, where during the course of treatment, they had died, hence the offence under Section 302 of IPC was registered against the appellant. The FIR was registered in the police station Neemuch Cantt. Vide Ex. P-1, Naksha Panchanama Ex. P-4 & Ex.P-5 was prepared. The blood of the deceased was seized in a plastic box Ex.P-6, iron Musal was seized vide Ex.P-7. Blood stain cloths such as Saari, Blouse, Petikot were seized. Photographs of the deceased Ex. P-25 to Ex.P-29 were taken and both children were sent to hospital where they were declared dead. Postmortem reports Ex. P-21 and Ex. P-23 were obtained and appellant was arrested vide Ex. P-24. Seized articles were sent to FSL and after completing the investigation challan was filed. The appellant had abjured the guilt, therefore trial had taken place in which appellant has been convicted in the manner indicated above.
34/ Learned counsel for appellant submits that since the appellant was suffering from mental disorder as is reflected from deposition of PW-1,PW-3,PW-4, PW-5 & PW-9, therefore, it is a case falling under section 84 of IPC. He submits that only one and two injuries were found on the deceased therefore, the offence under Section 304 Part I is made out. 5/ As against this learned counsel for state has supported the impugned judgment.
6/ Having heard the learned counsel for parties and on perusal of the record it is noticed that PW-3 Prahlad Singh has deposed the details of incident and stated that on the day next to Rakhi in the morning at 8.30 a.m. all of them had planned to go to Sanawad when his son Karansingh had demanded Rs. 20 and he had said that he will give it on the way. In the meanwhile appellant had taken Karan inside the room and had closed the room from inside. At that time both Karan and Ayushi were inside the room. Thereafter he had heard his son shouting 'papa' then his nephew had looked inside the room from the window and had seen that both the children were lying on the floor and appellant was having a Musal which she was waving. Thereafter the door of the room was broken and appellant was stopped and children were taken to hospital. Statement of PW-3 Prahlad is supported by statement of PW-1 Kamal Singh, PW-2 Rajendra Singh and PW-5 Mohan Singh. PW-4 Rahul who is a child witness, has deposed the details of the incident and has supported the prosecution case.
7/ PW-8 Dr. Vijay Bharti had done postmortem and had given postmortem report Ex. P-21 in respect of Ayushi. He had found 3 x 1/2 cm x bone deep lacerated wound on right parietal region 4 and fracture of the bone below it. The brain was cut in the right parietal region and brain membrane was also ruptured. He had opined that death was caused on account of head injury. He had also done postmortem of Karan Singh and had given the postmortem report Ex. P-22 and had found that there was a lacerated wound 4 x ½ cm x bone deep on the right parietal region and another lacerated wound 3 x 1 ½ cm x bone deep on the left backside of head. He had also found that skull bone on left occipital and right parietal region was fractured, brain membrane was ruptured and the brain was cut on left occipital lob and right parietal region. He had opined that Karan had died on account of head injuries.
8/ The investigation officer PW-9 O.P. Shrivastava has proved seizure of blood from spot Vide Ex.P-6, Musal vide Ex. P-7 and seizure of blood stain cloths of appellant on her disclosure memo Ex. P-25. PW-7 Ghanshyam Pandey had proved spot map Ex. P-19. Trial court has noted that in the photographs Ex. P-8, the blood on the seized Musal was clearly visible.
9/ From the aforesaid material, it is clearly established that death was homicidal in nature and appellant had caused death of Karan and Ayushi.
10/ So far as defence of unsound mind taken by appellant is concerned, the trial court in the impugned judgment has duly considered it and has rejected it. Section 84 of IPC provides that:
"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 5 is either wrong or contrary to law."
11/ Section 84 deals with general exceptions. The expression unsoundness of mind has not been defined in IPC and to take the benefit of Section 84, the accused has to clearly establish that the case falls under the said provision. 12/ Supreme court in the matter of Surendra Mishra Vs. State of Jharkhand reported in AIR 2011 SC 627 has held that:
7. 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. 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:
"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, 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."
8. 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 = AIR 2009 SC 31 in which it has been held as follows:
"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 6 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."
9. 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."
13/ The same issue came up before the Hon'ble Supreme court in the matter of State of Rajasthan Vs. Shera Ram Alias Vishnu Dutta reported in (2012) 1 SCC 602 wherein it has been held:
"19. From the above-stated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is 7 found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability."
14/ In the matter of Mariappan Vs. State of Tamil Nadu reported in 2013 Cri.L.J. 2334 after taking note of Section 84 the Hon'ble Supreme court has held that:
"10..... The above section makes it clear that a person, who, at the time of doing it, by reason of unsoundness of mind, commits anything, he is permitted to claim the above exception. (emphasis supplied). In other words, insanity or unsoundness of mind are the stages when a person is incapable of knowing the nature of the act or unable to understand what is wrong or right relate to the period in which the offence has been committed.
11. It is also useful to refer Section 105 of the Indian Evidence Act,1872 which reads as under:
"105. Burden of proving that case of accused comes 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, (45 of 1860), 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."
Though the burden of proving an offence is always on the prosecution and never shifts, however, the existence of circumstances bringing the case within the exception under Section 84 IPC lies on the accused."
15/ In view of the above judgment the burden is on the accused to proof his case falls under Section 84 of IPC. It has been held in the above judgment that the physical and mental condition of the person concerned is of paramount importance 8 for bringing the case within Section 84 by holding that:
"14) It is useful to refer the decision relied on by learned counsel forthe State i.e. Sudhakaran vs. State of Kerala, (2010) 10 SCC 582 : (AIR 2011 SC 265: 2010 AIR SCW 6688). The facts in that case are identical to the case on hand. Here again, thisCourt referred to Modi's Medical Jurisprudence and Toxicology, 23 rd Edition about paranoid schizophrenia. The following statement in paras 26and 28 are relevant:
"26. The defence of insanity has been well known in the English legal system for many centuries. In the earlier times, it was usually advanced as a justification for seeking pardon. Over a period of time, it was used as a complete defence to criminal liability in offences involving mensrea. It is also accepted that insanity in medical terms is distinguishable from legal insanity. In most cases, in India, the defence of insanity seems to be pleaded where the offender is said to be suffering from the disease of schizophrenia.
28. The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purposes of claiming the benefit of the defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act."
"15) After adverting to Sections 84 and 299 IPC and Sections 105 and 101of the Evidence Act, this Court concluded that "when a person is bound to prove the existence of any fact, the burden of proof lies on that person". This Court also held as under:
"35. It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 is the time when the offence is committed. We may notice here the observations made by this Court in Ratan Lal v. State of M.P. (AIR 1971 SC 778) In para 2 of the aforesaid judgment, it is held as follows: "It is now well settled that the crucial point of time 9 at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the [appellant]."
As concluded, we also reiterate that at the time of commission of offence, the physical and mental condition of the person concerned is paramount for bringing the case within the purview of Section
84."
16/ Counsel for appellant has referred to Article 'A review of Maternal and Paternal Filicide' by Dominique Bourget, an extract from internet in regard to mentally ill mothers and the article Fillicide; psychiatric disorders in parents who murder their children by L.M. Dil. But these articles only contain theoretical aspect of the matter, but it is to be seen if by producing cogent medical evidence it has been established that at the time of the incident her cognitive faculties were so impaired that she could not know the nature of the act.
17/ PW-1 Kamlabai has stated that on the date of incident appellant was being taken to Sanawad. She has stated that something used to happen to the mind of appellant and she used to go in hallucination that someone is abusing or coming to beat her. PW-3 has also stated that he was taking to the appellant to Sanawad for ('jhad phoonk') paternoster. Same is the version given by PW-4 Rahul and PW-5 Mohan Singh. No doctor has been examined by appellant to prove the unsoundness of mind. Only the certificate Ex. D-1 has been produced but even the doctor giving the said certificate has not been examined to prove it. No such material has been produced by appellant which could establish that at the time of incident for the reason of unsoundness of mind, the appellant was incapable 10 of knowing the nature of the act or differentiate between right or wrong.
18/ The record further reflects that the appellant had also taken the main defence that children had died on account of falling from scooter but said defence is also not established therefore, trial court has taken the view that appellant could not have taken two different defence.
19/ Having regard to the aforesaid, we are of the opinion that the case of appellant does not fall under Section 84 of the IPC. 20/ So far as the statement relating to extending the benefit of Section 304 Part I is concerned, the evidence clearly establishes that appellant has caused brutal murder of two children by hitting on their head by means of iron Musal. There was no provocation by the children or anyone and injuries received are also such which do not make out a case for converting the offence from Section 302 to Section 304 Part I. Two helpless children have been murdered by appellant by locking the room from inside that too by means of iron Musal. Hence no case for altering the conviction is made out.
Thus we do not find any merit in the present appeal which is accordingly dismissed.
C.C. as per rules.
(Prakash Shrivastava) (Shailendra Shukla)
Judge Judge
BDJ
Digitally signed by Bhuneshwar
Datt
Date: 2019.12.05 16:21:31 -08'00'