Chandan Singh & Anr. vs State of M.P.

This criminal appeal under Section 374 (2) of the Cr.P.C . filed on behalf of the appellant/accused Ramsujan @ Munda Kol is directed against the judgment dated 22.2.2006 passed by the Court of Additional Sessions Judge, Amarpatan, District Satna in Sessions Trial No. 191/2005, whereby the accused/appellant Ramsujan was convicted under Section 302 of the I.P.C. and was sentenced to undergo life imprisonment and to pay a fine in the sum of Rs.1000/-.

2(a) The prosecution case before the trial Court in a nutshell was that appellant/accused Ramsujan and deceased Bhoori Bai lived in the same village. A few dates before the date of the incident, appellant/accused Ramsujan had purchased eggs from the deceased Bhoori Bai without paying for the same. When Bhoori Bai used to demand the price of the eggs from accused Ramsujan, he used to tell her that eggs were rotten; therefore, he would not pay for them. On aforesaid account, abuses were heard and blows were exchanged between the accused and the deceased.

(b) At about 9:00 a.m. on 8.7.2005, deceased Bhoori Bai had gone to jungle with Suman (PW-4), Ramwati (PW-5), Savitri (PW-6), Ranno (PW-7) and Sita (PW9) to collect firewood. When they were returning to the village with firewood, accused Ramsujan met them under the hillock. He was carrying a small axe (tangi). Suddenly, accused Ramsujan started assaulting Bhoori Bai with the axe. Bhoori Bai fell down and bled profusely. Her companions Suman, Ramwati, Savitri, Sita and Ranno threw down the clusters of firewood they were carrying and ran towards the village in a panic-stricken condition shouting "murder ho gaya murder ho gaya".

(c) At the time of the incident, Vishram (PW-1), husband of deceased Bhoori Bai, was on the hillock, grazing his goats.

When he heard the screams and shouts of aforesaid women, he rushed to the spot and found that Bhoori Bai was lying in a pool of blood. She had sustained injuries to her throat, back, hand and head etc. She was unconscious. He saw accused Ramsujan running towards the hills. Vishram accompanied by the village people went after him in hot pursuit; however, the accused ran for about 6-7 kms. and reached Chowki Ghat. Assuming that the village people had given up the pursuit, he started to wash his blood-stained shirt and pant; however, Vishram persisted with the chase. He tried to catch the accused. When the accused saw Vishram, he jumped into Ban Sagar Water Reservoir on river Sone and swam for about 3-4 kms. and reached Brodha Village in district Shahdol. Thereafter, Vishram returned.

(d) Meanwhile, Bhoori Bai was brought by villagers to the village but she succumbed to her injuries. At about 1:10 p.m. the same day, Ramdas lodged first information report of the incident in P.S. Ram Nagar, District Satna. During investigation, blood-stained clothes of accused were seized from Chowki Ghat upon Ban Sagar Water Reservoir. The accused could be arrested only on 17.7.2005. After due investigation, charge sheet in the matter was filed.

The trial Court framed a charge under Section 302 of the I.P.C. against the accused. He abjured the guilt and claimed to be tried. In his examination under Section 313 of the Cr.P.C., neither he did take any specific defence, nor did he examine any witness in defence.

After the trial, learned Additional Sessions Judge held on the basis of the statement of Vishram (PW-1) that the prosecution had succeeded in proving beyond reasonable doubt that there was previous enmity between the accused and the deceased on account of failure of the accused to repay the price of the eggs purchased by him from the deceased. It was also held to be proved on the basis of the statement of

Dr. R.P. Garg (PW-14), who had conducted post-mortem examination of the dead body of the deceased that she had sustained 8 incised wounds on upper part of her body caused by hard and sharp object and she had died due to syncope as a result of excessive bleeding from the wounds. As such her death was homicidal in nature. On the basis of the deposition of eye witnesses Suman (PW-4), Ramwati (PW-5), Savitri (PW-6), Ranno (PW-7) and Sita (PW-9) it was held that the accused had assaulted the deceased with an axe and had inflicted numerous injuries on her back, neck and head etc.

As a result, she died shortly after the incident. Keeping in view the conduct of the deceased before and after the incident, as brought forth by the statements of the prosecution witnesses particularly Vishram (PW-1), the trial court was also of the opinion that there was no reason to believe that due to unsoundness of mind, the accused cound not appreciate the nature of his act and that what he was doing was either wrong or contrary to law. Consequently, the accused was convicted and sentence as herein above stated.

The conviction and the sentence of the appellant has been challenged before us by learned counsel for the appellant, mainly on the grounds that the trial Court failed to properly appreciate the evidence and erred grievously in holding that the offence punishable under Section 302 of the I.P.C . was proved beyond reasonable doubt against the appellant. Learned trial Court failed to give due importance to infirmities in the prosecution case. It has been argued that the police had failed to recover the weapon of offence during the investigation. The trial Court attached no significance to the fact that there was no motive for the appellant for killing the deceased. A trivial altercation between the appellant and the deceased on account of alleged failure of the appellant to repay the price of eggs to the deceased, was not strong enough a motive to prompt a man of common prudence to commit murder of someone. Absence of motive throws doubt upon the prosecution case. Even if it is assumed for the sake of argument that the appellant did indeed kill the deceased for such a weak motive, it is indicative of the fact that he was of unsound mind and at the time of the offence was incapable of knowing the nature of his act or that what he was doing what was wrong or contrary to law; therefore, he was entitled to the protection of Section 84 of the I.P.C.

Learned Government Advocate for the respondent/State on the other hand has supported the impugned judgment on the ground that the conviction is based upon unimpeachable testimony of as many as 5 eye witnesses; therefore, total lack or weakness of motive would not render the conviction unsustainable. It has further been argued that the conduct of the appellant prior and subsequent to the attack clearly indicates that at the time of the offence he was of a sound mind. It has also been contended that failure of the police to recover the weapon of offence would not adversely affect the finding of guilt.

On going through the record of the case and on due consideration of rival contentions, the Court is of the view that this criminal appeal against conviction must fail for the reasons hereinafter stated:

It is not in dispute that the deceased Bhoori Bai had sustained eight injuries caused by hard and sharp cutting object and had died as a result of syncope caused by excessive bleeding from the wounds. Thus, the nature of her death was homicidal.

Now the question that arises for consideration is whether it was the appellant, who had caused aforesaid injuries to the deceased? In support of the prosecution case, five witnesses namely Suman (PW-4), Ramwati (PW-5), Savitri (PW-6), Ranno (PW-7) and Sita (PW-9) have been examined. Out of these five witnesses only Suman was major.

Remaining eye witnesses Ramwati (PW-5), Savitri (PW-6), Ranno (PW-7) and Sita (PW-9) were minor. The gist of their deposition is that on the date of the incident they had gone along with deceased Bhoori Bai to collect firewood in the jungle. When they were returning to the village, the appellant arrived and assaulted the deceased with an axe upon her temple, neck and head etc. As a result, the deceased fell down and the appellant ran away. Upon hearing the commotion, Vishram (PW-1), husband of the deceased, reached the spot.

He chased the accused but the accused crossed the hill. The accused started to wash his clothes near Chowki Ghat. When the appellant realized that he has been followed, he again started to run. He threw his clothes and axe on the way. When Vishram crossed the hill, accused jumped in river Sone and swam a distance of about two and half kms. towards village Barodha. Meanwhile, the deceased was taken by villagers to the village, where she succumbed to her injuries.

It is true that one of the child eye witnesses namely Savitri (PW-6) has admitted in her cross-examination that she was accompanied to the Court by Vishram, Mangal Deen and Ram Sakha and they had told her as to what kind of statement is to be given by her. She has also admitted that on the date of the incident, she was at her home and had reached the spot on hearing the commotion; however, the prosecution has examined as many as five eye witnesses. Even if it is assumed for the sake of arguments that this particular child witness had been tutored by others, it does not dent the testimony of other 4 witnesses. Nothing could be brought out in the examination of other four eye witnesses, to discredit the prosecution story or supported the theory that it was not accused Ramsujan but someone else who had assaulted the deceased. The eye witnesses included child witnesses who could not be said to hold any grudge against the appellant. They had no reason to falsely implicate the appellant. The prosecution story as brought forth in the statements of these eye witnesses, is natural and does not suffer from any inherent infirmity or improbability. Thus, there is absolutely no ground to disbelieve four eye witnesses, namely Suman (PW-4), Ramwati (PW-5), Ranno (PW-7) and Sita (PW-9). Their statements cannot be disbelieved simply because they were related to the deceased because it was only natural for the family members to go together to collect the firewood.

It is true that during the course of investigation, the police had failed to recover the weapon of offence; however, this is not a case based upon circumstantial evidence. It rests on the solid foundation of eye witness accounts. The court has held that the statement of eye witnesses (with possible exception of Savitri (PW-6) are worthy of credence. In these circumstances, mere failure of the investigating agency to recover the weapon of offence would not discredit the entire prosecution case.

The Supreme Court in the case of Tama Vs. West Bengal AIR 2008 SC 12 has held that:

When the testimonies of two eye-witnesses had been believed by the learned Trial Judge as also by the High Court and in view of the fact that we did not see any reason to differ with the findings of the two Courts, in our opinion, the fact whether the bloodstains collected from the place of occurrence by the Investigating Officer had been sent to the Forensic Expert for chemical examination or not, pales into insignificance. We are furthermore of the opinion that whether the knife was recovered or not is also not of much importance.

In aforesaid circumstances, not much importance can be attached to the fact that weapon of the offence was not seized in this case.

The next point that has been raised by learned counsel for the appellant was absence or insufficiency of motive. It is true that the only motive that has been given by Vishram (PW-1), husband of the deceased for the offence is that there was a dispute between the appellant and the deceased on account of the fact that the appellant had purchased eggs from the deceased and had not paid for the same. When the deceased demanded her money, the appellant claimed that the eggs were rotten and they had germinated; therefore, the appellant would not pay their price.

In our opinion, ordinarily, such a motive would not be considered to be strong enough for an offence like murder.

However, it is settled principle of law that where a case is based upon direct evidence, correctness of conviction cannot be tasted on the touchstone of motive. The guilt of the accused cannot be challenged merely on the ground of absence or inadequacy of motive, where the offence has been established beyond reasonable doubt on the basis of unimpeachable eye witness accounts. If any authority is needed for aforesaid proposition of law, it is Om Prakash

Vs. State of Uttranchal, 2003 (1) Crimes 180 (SC). Thus, the argument of learned counsel for the appellant regarding inadequacy of motive, is not acceptable.

Last question that remains to be considered is whether at the time of the offence, owing to unsoundness of the mind, the appellant was incapable of realizing the nature of his act or was incapable of realizing that what he was doing so either wrong or contrary to law?

In this regard, learned counsel for the appellant has again invited attention of the Court to the statement of child witness Savitri (PW-6), who has admitted in her cross-examination that in her caste "choura" is applied to exorcise someone. She has further admitted that appellant's father used to apply "choura" for treating the mental condition of the appellant; however, it may be noted here that the same witness Savitri has categorically stated in her cross-examination that appellant was not insane. Suman (PW-4) has also specifically denied that the deceased was mentally ill.

She has also denied that father of the appellant used to take

the appellant to pilgrimage to get him treated for his mental condition. She has also denied that the appellant did not have capacity to think due to any mental illness. Likewise Ramwati (PW-5) has denied any knowledge of the fact that the appellant had turned insane four days before the date of the incident. Thus, on the basis of statements of prosecution witnesses, it cannot be said that on the date of the incident, the appellant was of unsound mind. The appellant has not examined any witness in defence either to establish the fact that on the date of the incident he was of unsound mind. He has not even made a mention about any such illness in his examination under section 313 of the Cr.P.C..

Now the question remains whether on the basis of other circumstances, the unsoundness of mind as required for protection under Section 84 of the I.P.C., may be inferred. It was argued before the trial Court that since the appellant had jumped into a huge reservoir of water like Ban Sagar Dam, it should be inferred that he was of unsoundness of mind.

Witness Vishram (PW-1) has stated that the appellant had swam a distance of about two and half kms. and had reached village Barohi on the other side of the reservoir. This fact indicates that he was a good swimmer and in order to escape from being caught, he had jumped into the reservoir. Thus, it was a conscious decision on the part of the appellant based upon the assessment of his capability as a swimmer. This by itself, does not indicate that he was mentally ill on the date of the offence.

It is true that the motive put forth by the prosecution for the offence appears to be inadequate.

However, the Supreme Court has held in the case of Seralli Wali Mohammad vs. State of Maharashtra, AIR 1972 SC 2443, the Supreme Court has held that:

The law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the offence. The mere fact that no motive was proved as to why the accused had murdered his wife and child nor the fact that he made no attempt to run away when the door was broken open, could not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.

It is also true that this Court, by its order dated 13.8.2016 had released the appellant on temporary bail on the ground of mental illness. Aforesaid order was passed on the ground of medical report received from Psychiatrist of Gwalior Mental Hospital. It was stated in the report that the appellant suffers from Psychosis and required Psychiatric treatment. However, it may be noted that it is not every kind of mental infirmity that clothes a person with immunity. It is stated that plea of unsoundness of mind needs to be specifically taken and proved. It is to be established that at the time of the incident, the offender was suffering from mental illness of such a nature that he was incapable of knowing the nature of his act or that he was incapable of appreciating that what he was doing was either wrong or contrary to the law.

In the instant case, after assaulting the deceased the appellant ran away from the spot. He not only crossed the hill but also jumped in the reservoir to evade arrest and consequent detention. He also tried to wash his blood-stained clothes. This conduct on the part of the appellant was clearly indicative of his guilty mind and of his desire not only to avoid arrest and consequent detention but also to obliterate the evidence of his crime. In these circumstances, it cannot be said that the appellant, at the time of the offence, was unable to appreciate the nature of his act. Thus, the protection of Section 84 of the I.P.C. was rightly denied to him by the trial Court.

No other point has been raised by the learned counsel

for the appellant during the course of arguments.

In these circumstances, this Court is of the view that the trial court was perfectly justified in convicting the appellant under Section 302 of the I.P.C. and imposing life imprisonment and a fine in the sum of Rs.1000/- upon the appellant and there is no ground for interfering with the impugned judgment.

Consequently this criminal appeal is dismissed. The conviction of the appellant under Section 302 of the I.P.C. recorded by the trial court and sentence of life imprisonment and fine imposed upon him is affirmed.