Gousinga Chandan vs State Of Odisha

S.K. Sahoo, J

This is a case of matricide. The appellant Gousinga Chandan faced trial in the Court of learned Addl. Sessions Judge, Dharamgarh in Criminal Trial No.22 of 2016 (Sessions) for commission of offences punishable under sections 302 and 323 of the Indian Penal Code (hereafter ‘I.P.C.’) on the accusation that on 14.01.2016 in between 7.30 p.m. to 8.00 p.m., at village Gotabandh, he committed murder of his mother Gurubari Chandan (hereafter ‘the deceased’) and also voluntarily caused hurt to his paternal uncle Balabhadra Chandan (P.W.10).

The learned trial Court vide impugned judgment and order dated 22.02.2019 found the appellant guilty under sections 304 Part-I and 323 of the I.P.C. and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo rigorous imprisonment for eight months for the offence under section 304 Part-I of the I.P.C. and to undergo rigorous imprisonment for six months for the offence under section 323 of the I.P.C. and both the sentences were directed to run concurrently.

The prosecution case, in short, is that on 14.01.2016 in between 7.30 p.m. to 8.00 p.m., while P.W.10 Balabhadra Chandan was present in his house, he heard cries of the deceased, who was his sister-in-law. When P.W.10 rushed to the spot, he found that the appellant was assaulting the deceased by one ‘Pahuruni’ (thenga) mercilessly and there were bleeding injuries on the deceased. When P.W.10 prevented the appellant, he was also assaulted by the appellant for which he also sustained head injury. P.W.10 shouted to draw the attention of others and accordingly, some of the co-villagers arrived at the scene of occurrence and they snatched away the ‘Pahuruni’ (thenga) from the hands of the appellant. The deceased was immediately shifted to C.H.C., Koksara in an ambulance, however, the doctor on medical examination, declared her dead.

On the written report of P.W.10, Koksara P.S. Case No.10 of 2016 was registered under sections 302 and 323 of the I.P.C. against the appellant. P.W.20 Om Prasad Patra, the Inspector in-charge of Koksara police station after registration of the case, took up investigation of the case. He examined the witnesses, sent the injured (P.W.10) to C.H.C., Koksara and obtained his medical examination report. He himself came to the C.H.C., Koksara and found the dead body of the deceased lying there. He then conducted inquest over the dead body and prepared the inquest report vide Ext.4 and also sent the dead body of the deceased for post mortem examination. On production by P.W.10, he seized the ‘Pahuruni’ (thenga) under seizure list Ext.6. He visited the spot, collected sample earth and blood-stained earth, prepared the spot map, seized the wearing apparels of the deceased, biological samples of the deceased, arrested the appellant and forwarded him to the Court on 15.01.2016. The I.O. then sent the weapon of offence to the doctor (P.W.19) and obtained opinion regarding possibility of injury on the deceased by such weapon, and on completion of investigation, he submitted the charge sheet against the appellant on 11.05.2016 under sections 302 and 323 of the I.P.C.

After submission of charge sheet, the case was committed to the Court of Session where the learned trial Court framed charges against the appellant as aforesaid and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

The defence plea of the appellant is one of denial.

During course of trial, in order to prove its case, the prosecution has examined as many as twenty witnesses.

P.W.1 Dullava Majhi and P.W.2 Damodar Nial who were working as Constables at Koksara police station accompanied the dead body of the deceased to C.H.C., Koksara for post mortem examination. They are the witnesses to the seizure of the wearing apparels of the deceased as per seizure list Ext.1 as well as the wearing apparels of the appellant as per seizure list Ext.2.

P.W.3 Jhasaketan Sahu and P.W.4 Romanchal Sethi, who were the constables at Koksara police station, are the witnesses to the seizure of biological samples of the appellant as per seizure list Ext.3.

P.W.5 Baishnaba Chandan is the husband of the deceased and the father of the appellant and the elder brother of the informant (P.W.10) and he took over the zima of wearing ornaments of the deceased after completion of post mortem as per the zimanama Ext.5. He is also a witness to the inquest.

P.W.6 Arun Chandan, who is the cousin brother of the appellant, is a post occurrence witness. He stated that on hearing the hulla, he came to the spot and found the deceased lying in her house sustaining injuries on her head as well as P.W.10 sustaining injury on his head and the appellant was kept detained in that house. He further stated that he along with others shifted the deceased to Koksara hospital, where the doctor declared her dead. He has proved the inquest report (Ext.4) and he is a witness to the seizure of the weapon of offence ‘Pahuruni’ as per seizure list Ext.6.

P.W.7 Parikhita Bhati and P.W.8 Sadasiba Ghee, who are co-villagers of the appellant as well as the deceased, are post-occurrence witnesses. They stated that on hearing hulla, they went to the house of the deceased and found her lying on the ground. They further stated that they heard that the deceased was assaulted by the appellant.

P.W.9 Shibananda Chandan, who is the son of the informant, stated that on the date of occurrence while he had been to Raipur, his younger brother informed him that the appellant killed his mother by means of ‘Pahuruni’ (Thenga).

P.W.10 Balabhadra Chandan is the informant and also injured in the case. He stated that at the time of occurrence, he was inside his house and heard some sound and came outside and found the appellant assaulting the deceased by means of ‘Pahuruni’ (thenga) and when he tried to intervene, the appellant also gave him blow by that thenga on his head and he sustained bleeding injury and thereafter, his son came and they all separated the appellant. He further stated that after the incident, he had been first to the hospital and then reported the matter at the police station and the deceased, who was alive at that time, succumbed to her injuries at the hospital and on his production, police seized the weapon of offence i.e. thenga.

P.W.11 Brahmananda Chandan, who is the son of the informant (P.W.10), has stated that on hearing hulla, when his father rushed to the spot, he followed him and found that while his father was protesting the assault and he was holding a thenga and he also found bleeding on the head of his father and the deceased was lying on the ground. He is the scribe of the F.I.R. (Ext.8) and a witness to the inquest report as well as the seizure of ‘Pahuruni’ (thenga).

P.W.12 Debraj Nayak, P.W.13 Kirtan Chandan and P.W.17 Prasanta Bhoi who are neighbours of the appellant, did not support the prosecution case.

P.W.14 Gopi Chandan is a witness to the inquest over the dead body of the deceased.

P.W.15 Gajindra Chandan who accompanied the deceased to the hospital, is a witness to the inquest over the dead body of the deceased.

P.W.16 Balaram Chandan and P.W.18 Shyam Sundar Ghee are the witnesses to the seizure of sample earth and blood stained earth as per seizure list Ext.9.

P.W.19 Dr. Abhishek Badapanda was working as Medical Officer in Koksara C.H.C., who conducted post mortem over the dead body of the deceased, proved the report as per Ext.10. He also proved the query opinion with the production of ‘Pahuruni’ (thenga) (M.O.I) by the I.O. as per Ext.11.

P.W.20 Om Prasad Patra was the Inspector in-charge of Koksara police station and he is the Investigating Officer of the case.

The prosecution exhibited fifteen numbers of documents. Ext.1 is the seizure list of wearing ornaments and wearing apparels of the deceased, Ext.2 is the seizure list of wearing apparels of the appellant, Ext.3 is the seizure list of nail clippings and blood sample of the appellant, Ext.4 is the inquest report, Ext.5 is the zimanama, Ext.6 is the seizure list of weapon of offence i.e. ‘Pahuruni’, Ext.7/1 is the injury requisition, Ext.8 is the F.I.R., Ext.9/1 is the seizure list of blood stained earth and sample earth, Ext.10 is the post mortem report, Ext.11 is the query opinion, Ext.12 is the dead body challan, Ext.13 is the spot map, Ext.14 is the requisition issued by the I.O. and Ext.15 is the chemical examination report.

The prosecution examined six material objects. M.O.I is the ‘Pahuruni’ (thenga), M.Os.II to IV are the seized wearing apparels of the deceased and M.Os.V and VI are the seized wearing apparels of the appellant.

No witness was examined on behalf of the defence.

The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that the prosecution witnesses are related to the deceased as well as the appellant and all the occurrence witnesses have come forward to depose against the appellant and it was held that the prosecution has proved that the appellant assaulted the informant (P.W.10) causing injury on his head and also assaulted his own mother Gurubari Chandan by one ‘Pahuruni’ (thenga) causing her death. It was further held that the prosecution has not established the charge under section 302 of the I.P.C., however the appellant is liable for the offence under sections 304 Part-I and 323 of the I.P.C.

Mr. Chitta Ranjan Sahoo, learned Amicus Curiae engaged to represent the appellant contended that so far as the assault on the deceased is concerned, only P.W.10, the informant has stated about the same, however, his evidence gets contradicted by the medical evidence inasmuch as even though he has stated that the appellant dealt fifteen blows by means of ‘Pahuruni’ (thenga) to the deceased on different parts of her body, but the doctor (P.W.19) conducting post mortem examination, noticed only one external injury on the temporal region. It is further contended that even though P.W.10 stated that he received the injury during the course of occurrence and was medically examined and that the appellant assaulted him by means of a thenga, but his injury report has not been proved. Learned counsel for the appellant further submitted that the witnesses have stated that the appellant was of insane mind and therefore, in view of the provisions under section 84 of the I.P.C., the appellant should be acquitted of the charges.

Mr. Rajesh Tripathy, learned Additional Standing Counsel appearing for the State, on the other hand, supported the impugned judgment and contended that not only the eye witness P.W.10 but also the other post occurrence witnesses, who arrived at the scene of occurrence, stated to have noticed the injury on the person of P.W.10 and the deceased lying with bleeding injury at the spot. Learned counsel further submitted that the medical evidence does not run completely contrary to the ocular evidence inasmuch as the assault by the appellant with a thenga is getting corroboration from the medical evidence as the doctor has noticed one lacerated wound on the temporal region and on examination of the weapon of offence i.e. thenga (M.O.I), he stated that the injury noticed on the deceased was possible by such weapon. Learned counsel further submitted that the learned trial Court has not committed any illegality in convicting the appellant under sections 304 Part-I and 323 of the I.P.C. and therefore, the appeal should be dismissed.

Whether the appellant suffered from insanity at the time of commission of the offence:

Section 84 of the I.P.C. 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 what he is doing is either wrong or contrary to law. In a case where the exception under section 84 of the I.P.C. 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 what he is doing is either wrong or contrary to law. The principle embodied in the Chapter is based upon the maxim 'actus non facit reum, nisi mens sit rea’, i.e., an act is not criminal unless there is criminal intent. The entire conduct of the accused, from the time of the commission of the offence upto the time, the Sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or after thought one. (Ref: T.N. Lakshmaiah -Vrs.-State of Karnataka : (2002) 1 Supreme Court Cases 219).

In the case of Sudhakaran -Vrs.- State of Kerala reported in (2010) 10 Supreme Court Cases 582, it has been held 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. The prosecution has to prove beyond reasonable doubt that at the time of commission of the offence, the accused had the requisite mens rea, however rebuttable presumption can be advanced by the accused by way of oral, documentary or circumstantial evidence but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case, the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.

In the case of Surendera Mishra -Vrs.- State of Jharkhand reported in (2011) 3 Supreme Court Cases (Criminal) 232, the Hon’ble Supreme Court while denying protection of section 84 of the I.P.C. to the accused, held as follows:-

“11. 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.”

To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntas est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior. 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 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. (Ref: State of Rajasthan -Vrs.- Shera Ram : (2012) 1 Supreme Court Cases 602)

In the case in hand, neither any medical evidence has been adduced by the appellant in support of legal insanity nor has any clinching oral evidence been adduced in that respect. P.W.5 has simply stated that the villagers were telling that the appellant was a mind crack person. P.W.6 has stated that their villagers used to call the appellant as ‘Baya’. What has been stated by P.W.10 in the cross-examination is that the appellant was a vagabond and without any work and was a bit insane mind. P.W.11 has stated that the appellant is partly insane. No such plea has been taken in the accused statement, rather the appellant answered to all the twenty six questions put to him by the learned trial Court like a normal man.

In my humble view, the statements of the witnesses by no means can be said to be conclusive that the appellant was insane at the time of commission of offence and as such, there is nothing on record to give the benefit to the appellant to claim the exception under section 84 of the I.P.C.

Whether P.W.10 can be regarded as a truthful witness:

There is no dispute that the prosecution case relating to the assault on the deceased has been deposed to by only one witness i.e. P.W.10, who is the informant in the case. He is not only related to the deceased but also to the appellant. Law is well settled that in order to act upon the testimony of a solitary witness, the evidence must be clear, cogent, truthful, reliable and above board. P.W.10 in the examination-in-chief has stated that when he heard some sound, he came outside and found the appellant assaulting the deceased by ‘Pahuruni’ (thenga) and then he tried to intervene, but the appellant gave him a blow by that thenga on his head for which he also sustained bleeding injury. In the cross-examination, P.W.10 has stated that the appellant dealt fifteen blows by ‘Pahuruni’ (thenga) to the deceased and the latter sustained injuries on her head, back, face, thigh, leg and hand and all the injuries were bleeding injuries. The doctor (P.W.19) who conducted autopsy over the dead body of the deceased, noticed only one external injury on the temporal region of 6 c.m. x 3 c.m. x 1.5 c.m. depth with fracture of frontal bone and the injury was antemortem in nature and on opening of the brain, extradural haematoma of size 5 c.m. X 3 c.m. with clot in frontal cortex was noticed. The doctor on examination of the seized ‘Pahuruni’ (thenga) opined that the injury on the dead body was possible by such weapon. Therefore, there are no corresponding injuries on the deceased to corroborate the ocular testimony of P.W.10.

In the case of Darbara Singh -Vrs.- State of Punjab reported in (2012) 10 Supreme Court Cases 476, it was held that so far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that ocular evidence is liable to be disbelieved.

Coming to the case in hand, when the star witness (P.W.10) has stated that fifteen blows were given by the appellant to the deceased by means of ‘Pahuruni’ (thenga) and the deceased sustained bleeding injuries on her head, back, face, thigh, leg and hand, but only one external injury was noticed by the doctor (P.W.19) on the head of the deceased as per post mortem report (Ext.10) and the prosecution is unable to reconcile the oral evidence with the medical evidence, in my humble view, it cannot be said that P.W.10 is an absolutely truthful and reliable witness. Though ocular evidence has to be given importance over medical evidence, but where the medical evidence totally improbablises the ocular version, that can be taken to be a factor to affect credibility of the prosecution version. Therefore, it would be risky to accept the version of P.W.10 to convict the appellant for assaulting the deceased and thereby committing culpable homicide not amounting to murder and thus, the conviction of the appellant under section 304 Part-I of the I.P.C. is not sustainable in the eye of law.

So far as the conviction of the appellant under section 323 of the I.P.C. is concerned, the learned trial Court has observed that as regards the assault on P.W.10, the evidence of the doctor is silent. P.W.10 specifically stated that he received the head injury due to the assault by the appellant with a thenga and he was also sent for medical examination and the doctor examined his injury. The I.O. (P.W.20) has also stated that he sent requisition to the doctor regarding the injury inflicted on P.W.10 and got the report. The doctor, who stated to have examined P.W.10 is none else than P.W.19, who conducted post mortem examination over the dead body of the deceased. However, the prosecution has not proved the medical examination report of P.W.10 through P.W.19. It was certainly laches on the part of the Additional Public Prosecutor who was conducting the case on behalf of State. There is no dispute that this Court in exercise of its power under section 391 Cr.P.C. can suo motu call the doctor (P.W.19) to prove the medical examination report of P.W.10 which is available on record, but since it is only for the offence under section 323 I.P.C., in view of passage of time, if such exercise is adopted, it would further delay the disposal of the case. Though for proving a case under section 323 I.P.C., medical examination report is not always necessary, but in the factual scenario, in absence of any medical evidence, it would not be proper to convict the appellant under section 323 of the I.P.C.

In view of the foregoing discussions, the conviction of the appellant under sections 304 Part I and 323 of the I.P.C. is hereby set aside. The Jail Criminal Appeal is accordingly allowed. The appellant, who is in judicial custody, shall be released forthwith, if his detention is not required in any other case.

Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action.

Before parting with the case, I would like to put on record my appreciation to Mr. Chitta Ranjan Sahoo, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned

Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only).

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