Arvind Shrivastava vs The State Of Madhya Pradesh on 6 November, 2017

[Cites 8, Cited by 15]

Madhya Pradesh High Court

Arvind Shrivastava vs The State Of Madhya Pradesh on 6 November, 2017

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant/accused namely Arvind Shrivastava, against the judgment and conviction dated 26.09.2005, passed by Special Judge (Atrocities) and Additional Sessions Judge, Bhopal in S.T. No.175/2002, whereby the appellant/accused has been convicted for commission of offences punishable under Sections 302 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.15,000/-, Section 307 of IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of -2 - Cr. A. No.2402/2005 Rs.10,000/- and Section 332 of IPC and sentenced to undergo rigorous imprisonment for two years, with default stipulations.

2. The prosecution story in nutshell is that the appellant/accused was posted as Constable in police out post Nishatpura a Railway Protection Force (in short "RPF"). He was allotted 303 bore rifle and about 25 cartridges. It is alleged that on 11.03.2002 at about 08:30 pm appellant was on duty at police out post Nishatpura alongwith other staff. Appellant fired a gun shot on Head Constable M.P. Singh and caused him fatal injury. Hearing the noise of fire Railway Goods clerk K.B. Singh who was working in Railway Godown situated near police out post, came out of godown, seeing him, appellant fired a gun shot on him and caused fatal injury. RPF Constable Rajendra Kumar Rai tried to stop the appellant, he also received a gun shot injury fired at him by appellant. Thereafter, appellant went to the roof of the Railway Running Room and again fired gun shot on Cook Rama Shanker Shatri, Washerman O.P. Malviya, Railway driver Sataynarayan, Box Boy Raju, Constable Dal Chand, Tej Singh, Chandre Dev, Ganesh Kumar and Vishnu Prajapati and caused them gun shot injury. Seeing the incident by the witnesses information was given at Police Station GRP, Bhopal. SHO GRP R.N. Bararu alongwith Head Constable Nafeez Hussain and other staff rushed on the spot and tried to take the appellant under their control and asked him to surrender. Seeing the GRP staff appellant fired at R.N. Bararu and Nafeez and caused gun shot injury to them. Thereafter, appellant was taken into custody and his rifle was seized by the police. In this incident Dal Chand, Sataynarayan, M.P. Singh and K.B. Singh died and Vishnu Prajapati, Tej Singh, -3 - Cr. A. No.2402/2005 O.P. Malviya, Ram Shanker Shakya, Rajendra Kumar, Raju Yadav, Chandra Dev Dubey, T.I. R.N. Bararu and Head Constable Nafeez had sustained injuries. The police registered three cases vide Crime No.122/2002, 123/2002 and 124/2002 against the appellant. During investigation empty cartridges and blood stains were seized from the spot, the inquest was conducted in respect of four persons died in the incident and other injured were medically examined. The spot map was prepared and after investigation one charge sheet was filed against the appellant in the Court.

3. The trial Court framed the charges of offence punishable under Sections 302, 307 and 332 of IPC against the appellant. He abjured guilt and pleaded innocence.

4. The defense of appellant was that he was a chronic patient of Schizophrenia and he was suffering from acute mental disorder on the date of the incident. At the time of the incident, the appellant was in the grip of Schizophrenia (acute mental disorder) and he did not know as to what he was doing.

5. Prosecution adduced 65 witnesses in its support whereas the appellant had examined two witness in his defence.

6. The trial Court by passing the impugned judgment held the appellant guilty for commission of offence punishable under Sections 302 (four counts), 307 (ten counts) and 332 of IPC and sentenced as mentioned hereinabove.

7. It is argued by learned counsel for the appellant that the trial Court erroneously rejected the defense plea and did not appreciate the medical evidence and various documents and certificated tendered in this behalf, which has resulted -4 - Cr. A. No.2402/2005 into manifest miscarriage of justice. Appellant had no motive or purpose in opening fire he had no enmity with the deceased and injured persons. The appellant was suffering from acute mental disorder at the time of incident, therefore, he is entitle the protection given under Section 84 of IPC.

8. Heard arguments and perused the record.

9. It is not disputed that at the time of incident the appellant was posted and working as Constable at police out post Nishatpura of GRP. Appellant was allotted 303 bore rifle and cartridges also. This fact is duly verified by Head Constable of RPF Kanchedi Awasthi (PW-40) who had issued the rife and cartridges to appellant. It is also not disputed that at the time of incident Head Constable M.P. Singh, Goods Clerk K.B. Singh, RPF Constable Rajendra Kumar Rai, the Cook working in Railway Running Room Rama Shanker Shakya, Driver Satayanarayan, Box Boy Raju, RPF Constable Dal Chand and other witnesses Tej Singh, Vishnu Prajapati, Chandre Dev Dubey, O.P. Malviya, Rama Shanker Shakya, Ganesh Kumar Rai and also Town Inspector R.N. Bararu and Head Constable Nafeez Hussain had received gun shot injuries, in which Dal Chand, Satayanarayan, Mahaveer Singh and K.B. Singh died on the spot. The evidence of Dr. D.K. Satyapathi, Director Medico Legal Institute, Bhopal (PW-30) who had performed postmortem of deceased Satayanarayan and prepared postmortem report (Ex.P/38), Dr. C.S. Jain (PW-31) who had conducted postmortem of Dal Chand and and Mahaveer Prasad, K.B.S. Chouhan given postmortem report (Ex.P/41), (Ex.P/43) and (Ex.P/44), confirms the death of above persons caused by gun shot injuries. Similarly Rajendra Kumar (PW-1), R.N. Bararu (PW-4), Nafeez (PW-5), Rama Shanker Shakya (PW-13), O.P. Malviya (PW-18), -5 - Cr. A. No.2402/2005 Vishnu Prajapati (PW-24), Chadra Dev Dubey (PW-25), Raju Yadav (PW-32), Tej Singh (PW-36) had deposed that they had received gun shot injuries during the incident. This fact is corroborated by Dr. Anurag Chouhan (PW-54) who had medically examined Chandra Dev, Omprakash Malviya, Satyanarayan, Raju Yadav, K.B. Singh and another Dr. J.K. Chourasiya (PW-56) who had examined R.N. Bararu, Satyanarayan, Raju Yadav, K.B. Singh, M.P. Singh deposed that they had found gun shot injuries on person of body of above witnesses in their medical examination. Thus, relying upon the evidence of above witnesses, which is duly corroborated by evidence of Doctors, P.M report and MLC report, the trial Court had rightly arrived at the conclusion that at the time of incident Dal Chand, Sataynarayan, M.P. Singh and K.B. Singh died and Vishnu Prajapati, Tej Singh, O.P. Malviya, Ram Shanker Shakya, Rajendra Kumar, Raju Yadav, Chandra Dev Dubey, T.I. R.N. Bararu and Head Constable Nafeez had sustained injuries.

10. Now the question arises, whether the appellant had fired gun shot at the above persons namely Dal Chand, Sataynarayan, M.P. Singh and K.B. Singh resulting into death of four persons and injuring Vishnu Prajapati, Tej Singh, O.P. Malviya, Ram Shanker Shakya, Rajendra Kumar, Raju Yadav, Chandra Dev Dubey, T.I. R.N. Bararu and Head Constable Nafeez ? Kanchedi Awasthi, Head Constable RPF (PW-40) deposed that on the date of incident 11.03.2002 working as Guard Commander, he had issued 303 rifle and 25 rounds to appellant who was going for patrolling duty. This fact is duly mentioned in arms issue register (Ex.P/53). He further deposed that Head Constable M.P. Singh was also on duty with the appellant. Rajendra Kumar Raj, Constable (GRP) -6 - Cr. A. No.2402/2005 deposed that at the time of incident he was working in GRP out post Nishatpura at around 08:30 pm in the night, he was present in the Barack. He heard the sound of firing and reached at the gate of police out post. He saw appellant with the gun meanwhile, K.B. Singh, Supervisor arrived at the door of godown, which is situated adjacent to police out post. Seeing him appellant fired a gun shot at him and caused injuries over his abdomen. Thereafter, appellant again fired at Raj Kumar Raj and caused injury on his abdomen. Rajendra Kumar ran away from the spot to save himself and came to the shop near godown and informed the witnesses present there and also gave information by telephone to Police Station R.P.F., Bhopal.

11. Ganesh Kumar Rai (PW-2) deposed that at the time of incident he was engaged as a labour to whitewash in Railway Hospital. He was returning from natures call when he reached near running room he heard a sound of gun fire and he received injury of gun shot on his left thigh. He was taken to hospital. He had heard the sound of gun fire coming from police out post Nishatpura.

12. Rama Shanker Shakya (PW-13) deposed that on 11.03.2002 around 8 - 9 pm he was working in the kitchen of running room he heard the sound of gun fire outside, he came out and saw Driver Satayanarayan, Box Boy Raju injured. He had also seen appellant with gun, he tried to run away from the spot, appellant fired gun shot at him and caused injury on his left leg. Thereafter, appellant went to the roof of running room.

13. O.P. Malviya (PW-18) deposed that at the time of incident he was purchasing some grocery items from a shop -7 - Cr. A. No.2402/2005 situated in front of running room, he heard the sound of gun firing and he received gun shot injury on his abdomen.

14. Vishnu (PW-23) deposed that at the time of incident he was present in front of police out post GRP Nishatpura, he saw the appellant at the roof of running room. Appellant was firing with his gun, he fired gun shot at Vishnu and caused injuries on his left leg. Two more persons had received injuries by gun shot fired by the appellant who were standing near this witness.

15. Chandra Dev Dubey, Sub Inspector (PW-25) deposed that at the time of incident he was working as In-charge at GRP out post Nishatpura. He heard sound of firing outside the out post, he came out and saw the people were running away from the spot. He saw Vishnu Prajpati, Tej Singh in injured condition who told him that appellant had fired gun shot at them. Meanwhile, appellant had fired gun shot at him and caused injuries on his left hand.

16. Raju Yadav (PW-32) deposed that at the time of incident he was present in the running room with Vikas Singh, Satayanarayan Driver, Rama Shanker Cook and other Box Boys. Hearing the sound of fire he came out of running room he saw appellant firing gun shot. Appellant fired at him also and caused injuries on his back. Rama Shanker, Satayanarayan and Vikas had also received gun shot injuries.

17. Vikas Singh (PW-37) deposed that at the time of incident he was present in running room to perform duty of Box Boy. He heard sound of firing from outside and came out of running room, he found appellant standing outside with a gun. Appellant fired at him and caused injuries. He had also fired at other persons present on the spot and caused them -8 - Cr. A. No.2402/2005 gun shot injuries. Driver Satayanarayan, Raju Yadav were also injured by gun shots.

18. Deepak Sahu (PW-50) deposed that on 11.03.2002 he was working as Cook in Railway Running Room around 08:30 pm in the night, he was cooking food with Rama Shanker Cook. He heard sound of firing coming from outside. Rama Shanker and he came out to see the incident. He saw appellant was firing gun shot by his rifle. He fired at Dal Chand and caused injuries. Seeing Deepak and Sataynarayan appellant fired at him by which Satayanaryan received gun shot injury. Rama Shanker had also received gun shot injuries on his left leg.

19. R.N. Bararu (PW-4) deposed that on 11.03.2002 he was posted as Station House Officer In-Charge at Police Station GRP, Bhopal at about 09:40 pm in the night he received telephonic message that appellant is making gun fire from the roof of Railway Running Room. He went to the spot with Head Constable Nafeez, Constable Shree Sen Shukla, Umrao Singh, Ram Parvesh, Sub Inspector R.P. Malhosiya and other police staff. He found three injured persons in the Running Room and appellant was present on the roof of Running Room with rifle. He asked appellant to surrender but appellant did not listen to him. Then R.N. Bararu and Nafeez went at the roof to apprehend the appellant, meanwhile appellant fired gun shot at them and caused injuries. This fact is also corroborated by Nafeez (PW-

5) who had received injuries at the time when he tried to apprehend the appellant.

20. Constable Umrao Singh Ukey (PW-42), Ram Parvesh Yadav (PW-48), Shree Sen Shukla (PW-51), Vijay Khandekar, ASI (PW-16) and Anokhe Lal Malviya, Head Constable (PW-

-9 - Cr. A. No.2402/2005

22) also deposed that they had accompanied R.N. Bararu, SHO (PW-4) at the time of incident. Appellant was firing gun shot from the roof of Railway Running Room. He caused gun shot injuries to many persons. R.N. Bararu and Constable Nafeez Hussain had also received gun shot injuries when they tried to apprehend the appellant. After sometime the appellant surrendered before the police and handed over his weapon.

21. Thus, from the statement of witnesses Rajendra Kumar Raj (PW-1), Rama Shanker Shakya (PW-13), O.P. Malaviya (PW-18), Vishnu (PW-24), Chandra Dev Dubey (PW-25), Raju Yadav (PW-32), Vikas Singh (PW-37), R.N. Bararu (PW-4) and Nafeez (PW-5), it is duly established that at the time of incident the appellant had fired gun shots by his rifle and caused injuries to above witnesses and caused death of Dal Chand, Sataynarayan, M.P. Singh and K.B. Singh. These witnesses had seen the appellant firing gun shot at them and the deceased persons. They are the injured witnesses. It is also found proved that the appellant was caught with gun on the spot. He had also fired gun shot to the Police Officers who came to apprehend and arrest him.

22. It is argued by the learned counsel for the appellant that appellant was suffering from acute mental disorder at the time of incident, therefore, he is entitle the protection given under Section 84 of IPC. He was in the grip of Schizophrenia (acute mental disorder) and he did not know as to what he was doing. The appellant had examined Dr. Anil Gour (DW-1) and Dr. R.S. Sahu (DW-2) in his defense to establish his mental disorder.

-10 - Cr. A. No.2402/2005

23. Dr. Anil Gour (DW-1) deposed that he had treated the appellant during 20.05.2000 to 12.11.2001 for mental ailment. He was suffering from Bipolar Mood disorder. He had examined the appellant on 20.05.2000, 21.02.2001, 04.03.2001 and 12.11.2001. In his cross-examination this witness has admitted that he had never found the appellant in aggressive mood. He had never advised the appellant to take leave from his duty. Another Dr. R.S. Sahu (DW-2) has deposed that he had examined the appellant on 12.07.2002, 06.06.2002 and lastly on 24.03.2005. He was suffering from Schizophrenia.

24. Section 84 of Penal Code provide for defense on the ground of insanity or unsoundness of mind, which reads as under:-

"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."

In law there is general presumption that every person is sane to the extent that he knows the natural consequence of his act. In case law T.N. Lakshmaiah Vs. State of Karnataka (2002) 1 SCC 219 Hon'ble Apex Court has observed as under:-

"In a case where the exception under Section 84 IPC is claimed, 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 is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought"

-11 - Cr. A. No.2402/2005

25. In the present case, it is found that the appellant was regularly performing his duty as Constable in police out post GRP Nishatpura. At the time of incident he had got the rifle and cartridges issued on his name from Kanchedi Awasthi (PW-40) the In-charge of Gaurd Room. Appellant was going on regular patrolling duty. Rajendra Kumar Raj, Constable GRP (PW-1) was working with appellant on the date of incident. He did not notice any sign of mental disorder in appellant. Another witness Ram Pal Singh, Constable GRP out post (PW-9) was also working with appellant on the date of incident who did not say that appellant was behaving abnormally. Champa Lal (PW-12) a labour in railway, deposed that at the time of incident appellant and M.P. Singh was on duty. M.P. Singh went inside police out post for taking meal, appellant came near him and demanded Bidi from him. Champa Lal light a Bidi for appellant and gave it to him. Thereafter appellant went inside police out post and started firing from his gun. Vijay Kumar Ved, Head Constable (PW-15) and Haj Harul Islam Khan, Head Constable GRP (PW-45) were also performing duties in GRP police out post with the appellant but they did not say that appellant was not behaving properly or he was showing some mental disorder. Thus, from evidence of above witnesses, it is found that the appellant came on duty at the time of incident. He had to go for patrolling. He had been issued rifle and cartridges. No abnormal behaviour or mental disorder in appellant was noticed by the witnesses at that time. There is no evidence to show that the appellant had ever taken any leave from the Office on the ground of mental illness. To seek exoneration from liability of an act under Section 84 of IPC the accused has to prove legal insanity.

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26. Hon'ble Apex Court in case law Surendra Mishra Vs. State of Jharkhand (2011) 11 SCC 495 observed as under:-

"An accused who seeks exoneration from liability of an act under Section 84 IPC is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in IPC and it has mainly been treated as equivalent to insanity. But the term "insanity" carries different meanings 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 IPC"

27. In this case, the appellant has not examined any witness of his family to show that during the period of incident appellant was suffering from mental disorder. It is necessary for the defense to establish that at the time of incident appellant was of unsound mind. There is no evidence suggesting any mental derangement of appellant at the time of commission of crime. No one had noticed any irrational or eccentric behaviour on the part of appellant. He was regularly appearing in his duty and never sought any leave on the ground of insanity. From the record of the trial Court, it appears that, for some time during trial appellant had undergone treatment for mental illness, but this is not enough to draw presumption that at the time of incident also he was suffering from mental disorder. In view of aforesaid, we are of considered opinion, that the appellant is not able -13 - Cr. A. No.2402/2005 to prove the defense of unsoundness of mind under Section 84 of IPC.

28. The trial Court on proper appreciation of evidence had rightly drawn the conclusion that the appellant had fired at the witnesses and deceased persons by his service rifle and committed the alleged offence. The appellant has been rightly found guilty for commission of offence punishable under Sections 302, 307 and 332 of IPC by the trial Court. There is no illegality or perversity found in the impugned judgment.

29. Consequently, appeal is devoid of merits and is hereby dismissed.

 (S.K. Gangele)                    (Anurag Shrivastava)
     Judge                                Judge

  Vin**




   Digitally signed
   by VINOD
   SHARMA
   Date: 2017.11.09
   01:34:09 -08'00'

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