Punjab-Haryana High Court
Omkar @ Gandhi vs State Of Haryana on 15 November, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
CRA 297-DB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA 297-DB of 2002
Date of Decision : 15.11.2010
Omkar @ Gandhi
....... Appellant
Versus
State of Haryana
....... Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Samir Rathaur, Advocate, for the appellant.
Mr. S.S. Randhawa, Addl. Advocate General, Haryana.
JORA SINGH, J.
Omkar @ Gandhi, preferred this appeal to challenge the judgment of conviction dated 12.2.2002 and order of sentence dated 13.2.2002, passed by the learned Additional Sessions Judge, Bhiwani, in Sessions Case No. 206 of 11.11.1999/21.8.2000, arising out of FIR No. 92 dated 9.9.1999, registered under Sections 302 and 323 of the Indian Penal Code at Police Station Bound Kalan.
By the said judgment, he was convicted under Section 302 IPC and was sentenced to undergo life imprisonment for the commission of offence under Section 302 IPC and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo two months imprisonment.
CRA 297-DB of 2002 -2-
Prosecution story, in brief, is that Sajjan Kumar- complainant is the son of deceased Om Parkash. On 8.9.1999, at about 9.00 p.m. he alongwith his family members had gone for sleep where his father Om Parkash was sleeping in front of his house under the 'Kikar' tree. Sajjan Kumar and his mother Savitri Devi, were sleeping inside the house and at about 2.00 a.m. (midnight) heard the voice of his father 'Hai Mar Diya'. His mother made him to woke up. Then he sighted Omkar @ Gandhi, while giving lathi blows to his father Om Parkash. Om Parkash had succumbed to his injuries at the spot. On seeing him Omkar (appellant) had fled away from the spot alongwith Lathi. He alongwith his mother had identified Omkar in the light of electric bulb glowing in front of the house of his Tau, Balbir Singh.
Sish Ram S/o Jai Lal, was also residing near his house and raised alarm 'Chacha Mar Diya'. On hearing raula complainant and Ram Kishan came at the spot but after causing injuries to Sish Ram, accused had fled away from the spot. Number of injuries were noticed on the person of Sish Ram. Sish Ram was shifted to Government Hospital, Dadri. An effort was made to trace Omkar @ Gandhi, but he was not traceable.
Motive to cause injuries was that on 8.9.1999, Omkar had demanded Biri from Om Parkash then Om Parkash replied that he (Omkar) used to demand Biri throughout the day then Omkar had threatened that he would settle the matter at the earliest. Sajjan Kumar had gone to lodge report. Near Indira Canal, police party headed by Jagdish Parshad, SHO, Police Station Baund Kalan, had met the complainant. Statement of Sajjan Kumar Ex. PM was recorded. After CRA 297-DB of 2002 -3- making endorsement Ex. PM/1, statement was sent to the police station on the basis of which formal FIR Ex. PH was registered.
Police party headed by SHO Jagdish Parshad, had gone to the spot. Inquest report was prepared. Dead body was sent to Government Hospital, Dadri, for Post-mortem examination. Rough site plan Ex. PP, with correct marginal notes was prepared. Chaddar, Mattress and Pillow, which were stained with blood were taken into police possession vide memo Ex. PN attested by the witnesses and the same were made into sealed parcel, sealed with the seal bearing impression 'JPY'. Seal after its use was handed over to PW Subh Ram, Ex-Sarpanch. After visiting Government Hospital, Dadri, the Investigating Officer came to know that Sish Ram was also given injuries by Omkar @ Gandhi. Statement of Sish Ram was recorded. MLR of Sish Ram was taken into police possession vide separate memo attested by the witnesses. On the same day accused was arrested while present near Indira Canal. Accused was interrogated. He suffered disclosure statement Ex. PK and in pursuance of the disclosure statement, lathi was recovered from the specified place. Sketch of lathi Ex. PL/1 was prepared. Lathi was taken into police possession vide memo Ex. PL. After the completion of investigation challan was presented in the Court.
Accused was charge-sheeted under Sections 302 and 323 of the Indian Penal Code to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
CRA 297-DB of 2002 -4-
PW-1 Dr. Anil Chaudhary, on 9.9.1999, had conducted Post-mortem Examination, on the dead body of Om Parkash and found following injuries on his person:
1. Lacerated wound of size 4 x 2 cm bone deep over the upper part of left side of forehead with fracture of left frontal bone 1.5 cm long with subdural haemotoma was present.
2. Lacerated wound of the size of 3 x 0.5 cm over the left side of face below the left lower lip between lower lip and chin muscle deep.
3. Lacerated wound of the size of 1.5 x .5 cm above the right upper lip muscle deep.
4. Lacerated wound of the size of 3 cm x 1.5 cm over the base of left nose with nasal process of frontal bond projecting from the wound.
5. Contusion of the size of 3 cm x 1.5 cm over the right upper eye lid red colour had conjunctiva was congested.
6. Swelling of the size of 8 cm x 6 cm over right side of face. On dissection large haemtoma was present with fracture of right nasal bone and maxilla bone in multiple pieces.
Cause of death was due to haemorrhage and shock due to injuries to vital organ brain. All the injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature.
PW-2 Dr. H.L. Beniwal, on 9.9.1999, at 5.00 a.m. had CRA 297-DB of 2002 -5- medico-legally examined Sish Ram and found following injuries on his person:
1. A lacerated wound of 2 x 1 cm muscle deep on left side of forehead. Clotted blood was present.
2. An irregular lacerated wound of 2.5 cm x 1 cm bone deep curved in shape 2 cm below injury No.1 on left side of forehead. Clotted blood was present on wound. Advised X-ray skull for injuries No.1 and 2.
3. Red bruise of 3 x 3 cm on left upper eye lid and upper part of left side of face.
4. Red bruise of 4 x 4 cm on dorsal aspect of right wrist.
5. Red bruise of 6 x 2 cm on ulnar aspect of left forearm at its upper part.
6. Red bruise of 5 x 4 cm on ulnar aspect of left hand. Advised X-ray left hand.
7. Complaint of pain on left side of back.
All the injuries were found to be simple in nature.
PW-3 Satish had taken the photographs Ex. P-4 to Ex. P-11 of the place of occurrence. Negatives are Ex. P-12 to Ex. P-19.
PW-4 HC Brij Lal, was deputed for getting Post-mortem Examination, conducted from Government Hospital, Charkhi Dadri. After post mortem examination dead body of Om Parkash was handed over to the relations of the deceased for cremation. One parcel CRA 297-DB of 2002 -6- containing clothes was handed over to him by the doctor and the same was taken into police possession vide recovery memo Ex. PG.
PW-5 ASI Laxman Singh, stated that on receipt of ruqa 'Mark A' he had recorded formal FIR Ex. PH.
PW-6 Constable Virender Singh, had delivered special report Ex. PH to Illaqa Magistrate.
PW-7 HC Siri Ram and PW-8 Constable Jagbir Singh, tendered their affidavits Ex. P-I and Ex. P-J, respectively.
PW-10 Sajjan Kumar, is the complainant and stated that on 8.9.1999, he alongwith his family member was sleeping inside his house whereas his father was sleeping under kikar tree. At about 2.00 a.m. during the night time he had heard noise 'Mar Dia'. His mother made him to woke up then had seen Omkar while causing injuries to his father with a lathi. Matter was reported to the police. Police came and in his presence mattress, chaddar and pillow stained with blood were made into sealed parcel and the parcel was taken into police possession vide memo.
PW-11 Smt. Savitri Devi, is the widow of Om Parkash (deceased) and has supported the version of Sajjan Kumar-PW 10, by saying that she had seen the accused while causing injuries to Om Parkash.
PW-12 Jagdish Parshad, District Inspector, was the Investigating Officer.
PW-13 Constable Virshakti Singh, had prepared scaled site plan Ex. PR.
CRA 297-DB of 2002 -7-
Report of FSL Ex. PS and Ex. PS/1 were tendered into evidence.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant had denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that he was of unsound mind at the time of occurrence.
In defence DW-1 Dr. K.K. Girdhar, Psychiatric, Government Hospital, Bhiwani, appeared and stated that he was the member of the Board of Doctors. Omkar @ Gandhi was examined by the Board. Patient was referred to Psychatry Department, PGIMS, Rohtak and as per opinion (Mark DA) of the psychiatric, Omkar was found to be suffering from schizophrenia.
After hearing learned Public Prosecutor for the State, learned defence counsel and going through the record, the appellant was convicted and sentenced vide order, as stated aforesaid.
We have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that occurrence was on the intervening night of 8.9.1999 but at the time of occurrence appellant was suffering from unsoundness of mind. Motive was very weak. Appellant had demanded Biri from the deceased and reply of the deceased was that throughout the day he (appellant) used to demand Biri. Appellant was carrying a lathi and gave blows to the CRA 297-DB of 2002 -8- deceased. On the same date as per prosecution story appellant had also caused injuries to Sish Ram. Sish Ram was not examined for the reasons best known to the prosecution. Sajjan Kumar, is the complainant and has not stated that on the same day appellant had caused injuries to Sish Ram. In cross-examination, he admitted that appellant used to roam in the village without any purpose throughout the day. He was got treated by his brother for mental ailment and thereafter appellant was left in the village by his brother. Even after treatment, appellant used to roam in the village and residents of the village also used to treat him like mad. In cross-examination he admitted that on the same day appellant had also caused injuries to Sish Ram, who was sleeping at a distance of 25 karams from his house. Savitri Devi is the widow of the deceased and in cross-examination admitted that residents of the village used to treat the appellant as in-sane person. Dr. K.K. Girdhar, was the member of the Board. Appellant was examined by the Board and was referred to Psychiatry Department, PGIMS, Rohtak. Ex. DA is the report of the psychiatric and according to the report, appellant was suffering from schizophrenia. The learned counsel for the appellant argued that when the appellant was lunatic at the time of commission of offence then he cannot be convicted and sentenced.
Learned State counsel frankly admitted that if the accused was suffering from unsoundness of mind at the time of commission of offence then he cannot be convicted under Section 302 IPC, but according to him in the present case appellant was mentally sound at the time of commission of crime. After conviction as per report of the CRA 297-DB of 2002 -9- Board, he was found to be suffering from schizophrenia. Evidence on file was rightly scrutinized by the trial Court.
Case of the prosecution is that on the intervening night of 8.9.1999, appellant had caused injuries to Om Parkash and one Sish Ram. Om Parkash had succumbed to his injuries on the spot. Occurrence was witnessed by Sajjan Kumar and his mother Savitri Devi whereas defence version of the appellant was that at the time of commission of crime he was suffering from unsoundness of month so he cannot be convicted and sentenced.
Now the point in issue is whether at the time of commission of crime appellant was suffering from un-soundness of the mind.
Sajjan Kumar-complainant is the son of the deceased. While appearing as PW-10, in examination-in-chief, he stated that he alongwith his other family members was sleeping inside the house whereas his father was sleeping under kikar tree outside the house. At about 2.00 a.m. he was made to woke up by his mother, then noticed the appellant while giving lathi blows to his father. In examination-in- chief, he has not stated a word that on the same day the appellant had also caused injuries to Sish Ram who was sleeping at a distance of about 25 karams from Om Parkash (deceased) but in cross- examination admitted that Omkar is known as Gandhi in the village. He (appellant) used to roam in the village without any purpose throughout the day. He was got treated by his brother for mental ailment and thereafter appellant was left in the village by his brother. Even after treatment, appellant used to roam in the village and residents of the village also used to treat him like mad. On the same night appellant CRA 297-DB of 2002 -10- had also caused injuries to Sish Ram, who was sleeping at a distance of about 25 karams from his house. In examination-in-chief, Sajjan Kumar, has not stated anything about the motive but as per prosecution story motive to cause injuries was that appellant had demanded Biri from Om Parkash and reply of Om Parkash was that throughout the day he used to demand Biri then appellant threatened to teach him a lesson shortly. So from the statement of Sajjan Kumar one thing is clear that appellant was not mentally sound. He was being treated by all the villagers as mad. Appellant used to roam in the village throughout the day and night without any purpose.
Savitri Devi, is the widow of the deceased and as PW-11 in examination-in-chief, stated that she had seen the appellant while causing injuries to Om Parkash with a lathi but in cross-examination admitted that residents of the village used to treat the appellant as in- sane person.
According to the prosecution story, on the same night appellant had also caused injuries to Sish Ram but he was not examined for the reasons best know to the prosecution. Appellant had no motive to cause injuries to Sish Ram. If appellant was not in-sane then he would not have caused injury to Sish Ram, without any reason. It appears that because of this reason Sish Ram did not come forward to support the prosecution case.
When the appellant at the time of commission of crime was suffering from unsoundness of mind then procedure laid down under Sections 328 and 329 Cr.P.C. was to be followed. Once appellant was found to be of un-sound mind then he was to be released pending CRA 297-DB of 2002 -11- investigation of the trial.
In (2002) 7 Supreme Court Cases 748, "Shirkant Anandrao Bhosale Vs. State of Maharashtra" it was observed that burden of proving the existence of circumstances bringing the case within the purview of Section 84 IPC, lies upon the accused and in para Nos. 10, 12, 13 and 19 it was observed as under:
"10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but afterwards change into abuses or insults. Delusions are at first at indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient CRA 297-DB of 2002 -12- gets very irritated and excited owing to those painful and disagreeable hallucinations and elusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others.
12. In view of the medical evidence, Mr. Aurn Pednekar, learned counsel appearing for the State very rightly submitted that the prosecution cannot question that the appellant was suffering from unsoundness of mind prior to and after the date of the commission of the offence. Even otherwise, it stands proved from the aforesaid evidence of depositions of the government doctors who, it appears, deposed on the basis of the medical record, that the appellant was suffering from paranoid schizophrenia long before the commission of the offence and the ailment continued thereafter as well. CRA 297-DB of 2002 -13- What has, however, been urged by Mr. Pednekar is that the appellant has failed to prove that he was suffering from unsoundness of mind at the time of commission of the offence. The submission is that the fact that the appellant was suffering from the ailment before or after the commission of the offence is of no consequence when the appellant has failed to prove he was suffering from that ailment at the time when the offence was committed.
13. The burden to prove that the appellant was of unsound and as a result thereof he was incapable of knowing the consequences of his acts is on the defence. Section 84 IPC is one of the provisions in Chapter IV IPC which deals with "general exceptions". That section provides that 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. The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105 of the Indian Evidence Act. Under the said section, the court shall presume the absence of such circumstances. Illustration (a) to Section 105 is as follows:CRA 297-DB of 2002 -14-
"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A"
19. The circumstances that stand proved in the case in hand are these:
1. The appellant has a family history - his father was suffering from psychiatric illness.
2. Cause of ailment not known - heredity plays a part.
3. The appellant was being treated for unsoundness of mind since 1992 - diagnosed as suffering from paranoid schizophrenia.
4. Within a short span, soon after the incident from 27-6-1994 to 5-12-1994, he had to be taken for treatment of the ailment 25 times to hospital.
5. The appellant was under regular treatment for mental ailment.
6. The weak motive of killing of the wife - being that she was opposing the idea of the appellant resigning the job of a police constable.
7. Killing in daylight - no attempt to hide or run away."
In the present case also as per complainant and his mother appellant used to roam in the village without any purpose throughout the day. Villagers were treating him as mad. No motive to cause CRA 297-DB of 2002 -15- injuries and arrested at the same place where report was lodged.
Appellant during the trial was in custody in District Jail, Bhiwani. The Superintendent, District Jail, Bhiwani, wrote a letter to the learned District and Sessions Judge, Bhiwani, for treatment of the appellant in some mental hospital. In view of the letter dated 2.3.2000, from the side of the Superintendent, District Jail, Bhiwani, appellant was being treated for some mental ailment. On request of Superintendent, District Jail, Bhiwani, appellant was got examined by the Board of Doctors. Dr. K.K. Girdhar, was one of the members of the Board.
Dr. K.K. Girdhar, while appearing as DW-1 stated that as per opinion of the Psychiatric Mark-DA, appellant was suffering from schizophrenia. Opinion of the Board, psychiatric and admission of the complainant and his mother leads to this conclusion that appellant was suffering from unsoundness of mind at the time of the occurrence. Appellant had demanded Biri from Om Parkash and Biri was not given. For that grudge appellant with a lathi had given injuries to Om Parkash. Occurrence was witnessed by Sajjan Kumar and his mother Savitri Devi. At a distance of about 25 karams Sish Ram was also sleeping. Appellant had also caused injuries to Sish Ram without any reason. Second occurrence was also witnessed by Sajjan Kumar-complainant and one Ram Kishan. Ram Kishan was not examined by the prosecution. Sajjan Kumar while appearing in the Court did not state about the second occurrence. Motive in this case was very weak. Earlier to the occurrence appellant had no enmity with the complainant party. Appellant without any reason used to roam in the village throughout the day. In these facts and circumstances, we are of the CRA 297-DB of 2002 -16- opinion that at the time of commission of crime appellant was suffering from unsoundness of mind and without knowing the consequences of the act he caused injuries to Om Parkash and Sish Ram. In case appellant was mentally sound and there was a motive to cause injuries then appellant was not expected to remain present near the same place where the statement of the complainant was recorded at about 6.30 a.m. on 9.9.1999.
Appellant was arrested on 9.9.1999 and remained in custody for about 7 years and one month when he was released on bail, vide order dated 3.7.2007.
In view of all discussed above, we are of the opinion that at the time of commission of the crime appellant was suffering from unsoundness of mind, therefore, in view of Section 84 of the Indian Penal Code, his conviction and sentence is liable to be set-aside. Accordingly, the appeal is allowed and conviction and sentence of the appellant is hereby set-aside. Appellant is acquitted of the charge levelled against him.
( JORA SINGH )
JUDGE
November 15, 2010 ( SATISH KUMAR MITTAL )
rishu JUDGE