Deepak Gupta, J.@mdashThis appeal u/s 374 of the Code of Criminal Procedure has been filed by the Appellant (hereinafter referred to as the ''Accused'') against the judgment passed by the learned Sessions Judge, Chamba in Sessions Case No. 21 of 2000 dated 24-1-2002 finding the accused guilty for an offence u/s 302 of Indian Penal Code (for short Indian Penal Code). After conviction, the accused has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of fine amount to undergo further simple imprisonment for a period of three months.
2. The facts necessary for decision of the case are that a case against the accused was initiated and registered on the basis of statement u/s 154 Code of Criminal Procedure of complainant PW-1 Anita Devi recorded on 17-5- 2000. The case of the prosecution is that one Vinay Kumar son of Amar Singh resident of Village Tundi, District Chamba, visited Police Post Sihunta on 17-5-2000 at about 1.30 p.m. and lodged a report that while he was working in his shop his uncle Dhani Ram informed him that his nephew Abhisekh alias Abbu has been given beatings by the accused and as Abbu was unconscious-he had been taken to hospital. Thereupon PW-12 ASI Uttam Chand along with PW-16 Head Constable Subhash and LHC Ashok Kumar proceeded to the spot where PW-1 got her statement Ex. PA recorded u/s 154 Code of Criminal Procedure in which she stated that she was having two children, one son and one daughter. The son Abhisekh @ Abbu was aged about 3-3/4 years and daughter Shilpa was 3 months old. At about 9.30 a.m. while she was sitting in the verandah she had asked her son Abbu to go to the house of PW-3 Smt. Veena Devi to find out to when he was to go to school. Abbu left the place and did not return for a considerable time. Thereafter, she started looking for him. She firstly enquired from her aunt PW-2 Kamlesh Devi who was preparing mud bricks whether she had seen Abbu. PW-2 replied that Abbu had not come there. After further search PW-1 went to the house of PW-3 and made enquiry from the accused who is her brother-in-law in relation about the whereabouts of Abbu. At that time the accused was sitting alone outside his house. When he was asked about the whereabouts of Abhisekh @ Abbu the accused got perplexed and replied that he had not seen Abbu. PW-1 thereafter went towards Tundi Bazar side in search of Abbu and heard cries of her family members. She therefore came home and saw that Abbu was being massaged and accused was sitting silent separately. She was told by PW-3 that the dead body of Abbu had been recovered which was kept by the accused inside the ''Obri'' (store room) after putting it into a gunny bag. The villagers assembled there and took the child to Samote hospital where the child was declared dead by the doctor. The body of the child was brought home. When they reached back home the accused made a statement that he had committed a blunder as he had put one hand on the mouth of Abbu and the other hand on his nostril resulting in his death. He then put the dead body of Abbu in a gunny bag and covered it with a towel in the ''obri''.
3. On the basis of the statement Ex. PA, PW-17 Inspector Jaram Singh started investigation and conducted the inquest proceedings Ex. PE and Ex. PF. The dead body of Abu was sent for post mortem to Primary Health Centre Samote. He prepared site plan Ex.PR of the spot. During the course of investigation PW-3 produced one plastic bag Ex. P2 and one towel Ex. P1 vide seizure memo Ex. PC. The statement of witnesses were recorded u/s 161 Code of Criminal Procedure After receipt of the post mortem report Ex. PO, FIR Ex. PS was recorded by ASI Yog Raj in Police Station Chowari. The accused was arrested on the spot. On completion of the investigation PW-11 S.I. Rachhpal Singh prepared the charge sheet against the accused and laid it before the trial Court.
4. The accused was not represented by any Advocate before the trial Court and therefore he was provided legal aid at State expenses. Charge u/s 302 Indian Penal Code was framed and explained to the accused to which he pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as seventeen witnesses. The statement of the accused u/s 313 Code of Criminal Procedure was duly recorded. The accused in his defence examined six witnesses. The defence of the accused was two fold. Firstly he pleaded that he has not committed the alleged offence and secondly as per the defence witnesses the accused was suffering from insanity at the time of commission of the offence and therefore u/s 84 of the Indian Penal Code he could not be convicted.
5. The learned Sessions Judge on consideration of entire evidence led before him came to the conclusion that the accused was guilty of murdering Abhisekh @ Abbu and that the offence stood proved against him beyond reasonable doubt. The learned Sessions Judge has also held that the accused was not insane and was not entitled to the benefit of Section 84 India Penal code as pleaded by him.
6. By means of this appeal the accused has challenged the conviction and sentence passed against him.
7. We have gone through the entire evidence and before considering the submissions of the learned Counsel for the parties. It would be appropriate to consider the evidence of the witnesses.
8. PW-1 Smt. Anita Devi has supported the version given by her in her complaint Ex. PA. She stated that Abhisekh @ Abbu was her son aged about four years and that the accused is her brother-in-law in relation. She stated that at the relevant time the accused was residing with his ''Bua'' PW-3 Smt. Veena Devi. Veena Devi''s house is in the neighbourhood. On 17-5-2000 she was breast feeding her daughter when Abbu started insisting that he should also be given milk. In order to avoid his demand, she sent him to the house of PW-3 to enquire about the time of his going to Angan Bari where PW-3 was working in the centre. When Abbu did not return for sometime, she made call for him, but could not get any response. Thereafter, she went to the house of her neighbourer PW-2 Smt. Kamlesh Devi and enquired from her whether she had seen Abbu nearby or not. PW-2 replied in the negative. PW-1 also saw the accused sitting in the verandah of his house. She went to the fields and enquired from PW-3 who too expressed her ignorance about his whereabouts. Thereafter she went towards Tundi Bazar in search of her son. On the way, she met her husband PW-5 Nek Ram and told him that Abbu was not traceable. PW-5 told her that he had seen Abbu playing with the accused. PW-1 thereafter returned to her house. On the way near the temple, she heard cries of the inmates and when she reached at the house of PW-3, she was told that Abbu had been killed by the accused. The deceased was lying on a cot and oil massage was being given to him. She noticed nail marks on his nose and cheek etc. The deceased was taken to Samote hospital where she had also gone. The Medical Officer declared him to be brought dead. The dead body of the deceased was brought home. She also stated that when the deceased was being given massage the accused kept sitting in the verandah silently and did not talk to anyone and remained unconcerned. When the deceased was brought back to the house at that time PW-3 had enquired from the accused as to what had happened on which the accused told that he had killed Abhisekh by putting one hand on his mouth and with his other hand he closed nostril of the deceased. Thereafter he had put the dead body of Abbu in a plastic bag, and put one towel on it and hid the same under the ''Sail'' (bark of Dhaman tree). In cross-examination she has admitted that the house from where the body of her son was recovered is owned by PW-3 and apart from her husband Shri Ravi Kaundal, three children and the accused also were residing therein. She then volunteered that husband of PW-3 does not reside there since he is employed outside Chamba. She has also been confronted with her statement Ex.PA to show that she had not named the other persons in whose presence the accused had made the alleged extra judicial confession. She admitted the suggestion to be correct that the accused is an orphan and is entirely dependent upon PW 2, PW-3 one Dhani Ram and the witness herself. She categorically denied the suggestion of the accused that she would have inherited the land of the accused. She also denied the suggestion that she got the accused treated at mental hospital, Pathankot.
9. PW-2, Kamlesh Devi stated that on 17-5-2000 in the morning at about 8.30 a.m. after her children had gone to school, Smt. Anita PW-1 came to her and made enquiry whether her son Abbu had come to her house. She told PW-1 that her son was not there. PW-1 started searching for Abbu. When she went to the house of PW-3 Veena Devi, she saw Abbu lying on the cot. Thereafter she called PW-1 mother of the deceased. A large number of people had gathered there. The accused kept sitting in the verandah at that time and did not take part in any activity. The witness was declared hostile and cross-examined by the prosecution. In cross-examination she has admitted that the accused is more closely related to her than the deceased. She also admits that when she was preparing the mud bricks she had heard Abbu calling for his ''Bua'' (PW-3 Veena Devi) and making enquiry about the time of attending Angan Bari centre. A suggestion that in her presence the accused had confessed to PW-3 that he had kept one hand on the mouth of the deceased and closed his nostril with other hand whereby Abbu died and that he put him in a plastic bag and kept the bag under the ''sail'' is denied by her. When she was confronted with portion ''A to A'' of her statement Ex. PB u/s 161 Code of Criminal Procedure wherein these facts are recorded she stated that these words were uttered by the accused when he was in the custody of the police (wrongly translated as custody of the accused in the English translation of the statement). She has pleaded her ignorance as to whether PW-1 Anita Devi was present when the accused pleaded his guilt. She has denied the suggestion that she had seen the accused playing with the deceased at 9.30 a.m. on the day of occurrence. She has admitted that the accused used to behave normally and used to play with the deceased. She has denied the suggestion that she is deliberately twisting the facts of the case to help the accused who is closely related to her. In cross-examination by the accused she has admitted the suggestion that the accused confessed his guilt when he had been picked by the police by his hair. She states that PW-3 Veena Devi had taken the accused to Mental Hospital Pathankot for treatment.
10. PW-3 Veena Devi states that she is an Anganbari worker. On 17- 5-2000 she had gone to the fields and the accused was at her house. At about 9.15 a.m. PW-1 Smt. Anita had made enquiry from her about her son Abbu. She told PW-1 to search him at her house (Veena''s house) because he might have gone there. She returned to her house after about 10-15 minutes. At that time the accused was separating ''sail'' from the branches of Dhaman tree. She went inside the house to change her clothes. She heard noise outside that someone was searching for Abbu. In the meantime, she found that the bag containing ''sail'' was not in its place and when she picked up the said bag kept near the door of the ''Obri'', one leg of the child got into her hands. The child had been kept in the bag and one towel was also in the bag. Thereafter she took out the child and made him to lie on the bed and told this fact to all the other persons present there. They started giving massage to the hands and feet of the deceased and tried to give him water. Thereafter Abbu was taken to hospital. All this time the accused continued separating ''sail'' in the verandah. He did not accompany Abbu to the hospital nor he talked to any one present in the house. She produced towel Ex. P1 and plastic bag Ex. P2 which was taken into possession by the police vide seizure memo Ex. PC. At this stage the witness was declared hostile and permitted to be cross-examined by the prosecution. She was confronted with portion A to A of her statement u/s 161 Code of Criminal Procedure Ex. PD wherein such fact was recorded. She has denied the suggestion that she is deposing falsely with regard to the extra judicial confession made by the accused. She also admits that she was called to I.G.M.C. Shimla where she remained for one day. She also admitted that there were nail marks on the nose of the deceased. She further admitted that the accused was more closely related to her than the deceased. She stated that she enquired from the accused about the death of Abbu, but he did not say anything. She has denied the suggestion that the accused had told her that he had kept one hand on the mouth of the deceased and by the other hand he closed the nostril of the deceased and killed him and kept dead body inside the ''boru'' (bag) concealed in the ''obri.''
11. PW-4 Vijay Kumar is the uncle of Abbu deceased. He stated that at about 12.30 p.m. on 17-5-2000 he was informed by his uncle Dhani Ram that the accused had beaten the deceased and thereafter he had gone to the Police Post to report the matter. By the time the police came, Abbu had already died. He has proved the inquest proceedings Ex.PE and Ex. PF which were made in his presence by the Investigating Officer.
PW-5 Nek Ram is the father of the deceased. He states that at about 9.30 a.m. on 17-5-2000 his wife sent Abbu to the house of PW-3 Veena Devi to enquire about the time. Thereafter he left his house for Tundi Bazar. On the way to Tundi Bazar he had seen Abbu playing with the accused in the verandah of his house. When he was coming back from the bazar he met his wife Anita, who told that Abbu was not traceable. He informed her that he had seen Abbu playing with the accused and he would be playing some where nearby. They both started searching for Abbu. The accused was sitting silently in his verandah and when he was asked about the whereabouts of Abbu he got perplexed and stated that he had not seen Abbu. Thereafter while they were searching for Abbu near the temple they-heard cries of the inmates and on return they found Abbu lying on the cot and massage was being given to him. Abbu was taken to the hospital at Samote where he was declared dead by the Doctor. Thereafter his dead body was brought back to his house. All this time the accused remained sitting silently in the verandah. He states that in their presence PW-3 Veena Devi and other villagers had asked the accused as to how Abbu had died. The accused had confessed that he had killed Abbu by placing one hand on his mouth and closing his nostril with other hand and that thereafter the accused had kept the dead body of the deceased in one bag and also kept one towel in the bag and covered the bag with ''sail''. In cross-examination he stated that only the accused and the deceased were playing at the time when he was going to the bazar side. He stated that his house, the house of Dhani Ram and that of the accused are located in the same vicinity and about 25 persons including children are living in those houses. He further stated that many persons were present when accused confessed his guilt apart from himself, his wife, Dhani Ram, Kamlesh, Veena Devi etc. He has been confronted by the defence Counsel with his statement u/s 161 Code of Criminal Procedure with regard to certain variations between that statement and statement made in the Court. The two main points being that in the statement recorded by the police there is no mention of the fact that the accused had told that he had kept the dead body in the ''obri'' and also there is no mention about the injuries on the person of the deceased. The witness has admitted that he had been under treatment of DW-6 Dr. Kanwar Rajpal Singh of Pathankot. He has denied the suggestion that he is cultivating the land of the accused or that he would inherit the land of the accused. He has stated that the accused is a violent person and is doing violent acts since the very beginning. He has denied the suggestion that the accused did not confess his guilt in his presence. He has also denied the suggestion that the accused and the deceased were not playing together prior to the death of the deceased. He has also denied the suggestion that he is mentally ill.
12. PW-6 Varinder Singh is the photographer who had taken the photographs of the dead body of the deceased. He has proved photographs Ex.P-3 to P-13 and negative Ex. P-14.
13. PW-8 R.C. Kaundal is the Junior Engineer who has proved that he had prepared map Ex. PH of the house of the accused. PW-9 Tarsem Kumar has proved the daily diary report vide Rapat No. 7 dated 17-5- 2000 made by Vinay Kumar Ex. PJ. PW-10 Parvesh Kumar is the Patwari, who has prepared the Tatima Ex. PK and Jamabandi Ex. PL. PW-11 Rachhpal Singh is Additional S.H.O., Police Station, Chowari who has prepared the challan of the case.
14. PW-12 Uttam Chand, ASI states that he along with other police officials went to the place of occurrence in May, 2000. He recorded the statement Ex. PA of PW-1 Anita Devi mother of the deceased u/s 154 Code of Criminal Procedure and thereafter he made his endorsement Ex. PA/1 thereon and sent the same to the Police Station for registration of the case. He has partly investigated the case. In cross-examination he has denied the suggestion that he recorded the statement of the witnesses on his own. Further suggestion that certificates relating to the age of the accused were not issued by the concerned Doctor and Secretary, Gram Panchayat, is also denied.
15. PW-13 Dr. R.C. Sharma is Professor and Head of the Department of Psychiatry, I.G.M.C., Shimla. The accused was referred to the Department of Psychiatric by S.D.J.M., Dalhousie to find out whether he was in a fit state of mind to face trial. The accused was first examined by PW-13 Dr. R.C. Sharma, Professor and Head of the Department of Psychiatry, I.G.M.C., Shimla on 19-6-2000. In his report Doctor Sharma observed that the accused had a history of illness but there was no close relation with the patient to corroborate the history of illness of the accused. The Doctor came to the opinion that in the light of inadequate information the accused would appear to be suffering from ''psychotic mental disorder''. However, the doctor felt that the accused should be observed for at least 10-14 days before giving his final psychiatric opinion. Thereafter the accused was admitted in I.G.M.C. Shimla from 30-6-2000 to 8-7-2000. PW-3 was also associated being close relative (Bua) of the accused. After complete medical and psychiatric examination, history of the patient and detailed observations in the ward Doctor Sharma came to the final opinion which is as follows:
Accused Dr. Manohar Lal was admitted in MMU-1 Bed No. 27 (psychiatry) w.e.f. 30-6-2000 to 8-7-2000 vide Cr. No. 175792/ for observation. His illness history was obtained from his relative (BUAJI) Smt. Veena Kumari, age 40 years old FA and he was observed and examined every day during his stay in I.G. Hospital, Shimla. His investigation were also done which were within normal limits.
From history observation and examination the final psychiatric opinion of this patient is "PAEDOPHILIA" (VF 65.4). No other mental disorder present. He is fit to stand trial.
Dr. Sharma has reached the aforementioned diagnosis based on the following points:
1. History of indulging in sexual activity of paedophilic type with his class mates right from the age of 8 to 9 years.
2. Preference for and indulging in sexual activity with the alleged victim several times, including attempt to drown him so as to stop him from revealing the truth.
3. Confession by the accused of sodomising other young children (pre-pubscent) also in opportunistic surroundings.
4. The confession by the accused before me, departmental psychiatric social worker (Dr. N.L. Gupta) and Hospital Neurologist (Dr. Jyoti Mehta) separately, about sodomising children including the alleged victim.
5. No conclusive evidence of any neuro-psychiatric dis-order as per history examination and investigations.
16. Be it stated, that there is no charge of sodomy against the accused. During cross-examination the testimony of this expert witness has not been shattered and he is of the considered view that the accused is suffering from behavioural disorder and not from mental disorder.
17. PW-14 Dr. Arvind Kanwar conducted the post mortem on the dead body of the deceased. His opinion is that the deceased died due to asphyxia as a result of smothering (manually by using hands). The probable time that elapsed between injury and death was few minutes and between death and post-mortem less than 24 hours. He is also of the opinion that in the ordinary course of nature, asphyxia was sufficient to cause death of the accused. In cross-examination the only relevant fact which has been elicited is that the deceased child was not sodomised prior to post-mortem. Nor had the witness noticed any stains of semen in between thighs of the deceased.
18. PW-15 Jaswant Singh Rana, is the Secretary, Gram Panchayat who has proved the date of birth of the accused in birth certificate Ex. PQ. PW-16 Subhash Singh is HC who had recorded statement of R.C. Kaundal (PW-8).
19. PW-17 Jaram Singh is the Investigating Officer, who states that he recorded the statement of PW-1 and carried out the inquest proceedings Ex. PE and Ex. PF and thereafter vide application Ex. PP sent the body of the deceased for post-mortem to Primary Health Centre, Samote. The post-mortem report Ex. PO was collected by him. He also prepared the site plan Ex. PR. He further stated that PW-3 Veena Kumari produced one plastic bag Ex. P-2 and one towel Ex. P-1 which were taken into possession by him vide seizure msmo Ex. PC. He has also proved the statement Ex. PB of PW-3 recorded u/s 161 Code of Criminal Procedure He states that he took into possession copy of Aks Shajra Kishtwar Ex. PK and Jamabandi Ex. PL. FIR Ex. PX was recorded by ASI Yog Raj. In cross-examination the witness admits that the accused had not made any confessional statement before him.
20. No case was set up by the accused u/s 313 Code of Criminal Procedure that he was mentally unfit. The accused led defence evidence and examined six witnesses.
21. The evidence led by the accused is only to prove the fact that the accused is of unsound mind and is entitled to be acquitted by giving him benefit of exception u/s 84 of the Indian Penal Code. DW-1 Jaigopal Lodta, at the relevant time was posted as Assistant Superintendent District Jail, Chamba. He states that in jail the behaviour of the accused was erratic and was sometime aggressive and sometime quiet. It was reported to him by DW-2 Chuni Ram Head Warder on 10-6-2000 that the accused had inflicted injury on his arm with half blade. On 12-6-2000 DW-4 Dr. K.L. Sharma visited the jail and after checking the accused referred him to I.G.M.C. for psychiatric opinion. In cross-examination he admits that he is not a psychiatrist and that he only observed a slight behavioural disorder in the case of the accused. DW-2 has also stated that the behaviour of the accused was erratic and he suspected that the accused could commit suicide. On 10-6-2000 the accused had inflicted injury on his arm with half blade which statement was recorded by him in Kacha Roznamcha Ex. DA. In cross examination he admits that in his 34 years of service as a warder in the Jail Department he has seen number of prisoners who remained quiet and number of prisoners would talk too much. He further states that he is not a qualified psychiatric and has only studied upto 8th class.
22. DW-3 is Veena Devi. It is indeed surprising as to how she has been permitted to be examined as a defence witness. She had already been examined as PW-3 by the prosecution. She was declared hostile and cross examined by the prosecution. Thereafter she was cross-examined by the defence. She could not have been summoned again as a defence witness. However, since her statement has been recorded we are also taking into consideration her statement recorded as a defence witness.
23. This witness has stated that the accused is suffering from some mental disorder for the last 4-5 years prior to the occurrence and she had got treated him from Doctor DW-6. She also states that accused was given electric shock and remained in hospital for five days. In cross-examination she has admitted that the accused used to do all routine work on his own and no help was rendered to him in this connection. She further stated that the accused used to respect her command for doing domestic work and that the accused never did any disrespectful thing with her.
24. DW-4 Dr. K.L. Sharma, Senior Medical Officer, Zonal Hospital, Chamba was also Medical Officer of District Jail, Chamba. He stated that he had examined the accused in the jail and found him of psychiatric nature with aggressive attitude and erratic behaviour. Since he was not a psychiatric expert and there was no psychiatric expert in Zonal Hospital, Chamba he referred the accused to I.G.M.C. Shimla, for his treatment. In his opinion the accused was a mental case. In cross-examination he admits the suggestion that he has not mentioned the fact that the accused is a mental case in Ex. DC vide which he referred the accused to I.G.M.C., Shimla. He also admits that since he could not come to any definite conclusion therefore he had referred the accused to IGMC for expert opinion. DW-5 Nek Ram Thakur has only proved the original OPD slip Ex. DC. DW-6 is Dr. Kanwar Rajpal Singh a Neuro Psychiatrist in Hospital Lamini Pathankot. He states that the accused was admitted to his hospital on 26-11-1999 and discharged on 30-11-1999. He has proved the patient diary Ex. DB. According to him the accused was suffering from major mental disorder schizophrenia. He by way of treatment, had subjected the accused to electric shock thrice. He also states that PW-5 Nek Chand resident of Tundi was also his patient suffering from major mental disorder. In cross-examination he has admitted that in the patient diary Ex. DB there is no mention of the disease being suffered by the accused and only the medicines were prescribed by him. He has not brought any record to show as to what was the disease being suffered by the accused. He further states that he does not agree with the opinion of PW-13 Dr. R.C. Sharma.
25. This is the entire evidence recorded in the case.
26. We have considered the rival contentions of the parties and have heard Mr. Sanjeev Kuthiala, Amicus Curiae for the accused and Mr. Som Dutt Vasudeva, learned Additional Advocate General for the Respondent-State.
27. Mr. Kuthiala has basically raised the following points in support of his case:
(i) That there is no connection of the cause of death of the deceased with the accused;
(ii) the case being based on circumstantial evidence, there is no chain of events linking the accused with the death of the child and the benefit should go to the accused;
(iii) that the theory of last seen is not proved in view of the statements of the witnesses namely PWs 1, 2, 3 and 5 and the statement of PW-5 father of the deceased cannot be believed as he is an interested witness; and
(iv) the extra judicial confession allegedly made by the accused to PW- 3 Veena Devi has not been proved since PWs 2 and 3 have turned hostile and have not supported the prosecution case to that extent.
28. The sum and substance of his argument is that the accused has not at all been connected with the crime. The prosecution case is based on interested and circumstantial evidence. The last seen theory is not proved and in fact has been demolished and no reliance can be placed on the same. According to Mr. Kuthiala in case the evidence is minutely scrutinised the guilt of the accused is not established. The alternative prayer of Mr. Kuthiala is that the witness was of unsound mind and was unable to comprehend the nature or gravity of the offence committed by him and it has been proved on record that he is insane and suffering from a major mental disorder, and as such, he is entitled to the benefit of Section 84 of the Indian Penal code.
29. Before we consider the alternative argument of Mr. Kuthiala, firstly we would take up the case on merits Since the question of deciding the alternative argument will only arise in case we come to the conclusion that it stands proved on record that it is the accused who has committed the offence.
30. The undisputed facts are that on the day of occurrence at about 9.30 a.m. the deceased was sent by his mother to the house of PW-3 Veena Devi. When he did not return for sometime she started searching for him. It is also not in dispute that the body of the deceased was recovered after a short while, from the house of PW-3 where the accused was also residing with her. According to PW-5 Nek Ram, father of the deceased, while he was going to Tundi bazar he had seen his son playing with the accused Manohar Lal. There is no reason to disbelieve the statement of the father. The argument that he is an interested witness does not appear to be correct. The witness is only interested to get justice. He is not interested in falsely implicating the accused in a crime. It is the admitted case of the parties that the accused is also related to the parents of the deceased and in fact they were also helping to look after him since he was an orphan.
31. The case as emanating from the evidence is that the deceased went to the house of PW-3. PW-3 Veena Devi discovered his body in a plastic bag kept under the ''sail.'' Obviously this was with the intention of hiding the body. It is clear that the deceased was killed as is also evident from the doctor''s opinion. The only question is who killed the deceased child. All the witnesses present at that time stated that after the body of the deceased was discovered it was placed on a cot and massage was being given to the child. A large number of people had gathered. In a small village, an incident of such a nature will obviously create a huge commotion. However, strangely, the accused during this period as deposed by all the witnesses remained silent and kept sitting in the verandah separating the ''sail'' from the branches of Dhaman tree. This behaviour was not natural.
32. The next important factor is that according to PWs 1 and 5 the accused had made an extra judicial confession in their presence to PW-3 Smt. Veena Devi that he had killed the child by covering his mouth with one hand and closing his nostril with the other hand. Mr. Kuthiala has stated that though the parents of the deceased have stated this version but no other witnesses have been produced to prove the same. According to him, PW-2 Kamlesh Devi has turned hostile and has also not supported this version. PW-2 initially denies that the accused made any such extra judicial confession to PW-3 Veena Devi in her presence. However, after she was declared hostile and confronted with portion A to A of her statement Ex. PB recorded u/s 161 Code of Criminal Procedure where it was so recorded she gave an explanation that these words "were uttered by the accused when he was in custody of the police." She also cannot say whether PW-1 Anita Devi mother of the deceased child was present when the accused confessed his guilt. Therefore it is clear that even this witness does not deny that the accused had not made the extra judicial confession but has only stated that this statement was made by him in the presence of the police. As far as PW-3 Veena Devi is concerned she has not at all supported this version and is categorical that no extra judicial confession was made by the accused to her. In fact as per her version when she asked the accused as to what had happened to the child he had kept silent.
33. After going through the entire evidence it appears to us that PWs 2 and 3 are trying to twist the facts to help the accused who is more closely related to them. The version given by PWs 1 and 5 inspires confidence. Even the version of killing as given in the extra judicial confession is in consonance with the medical evidence, the post mortem report and the opinion of PW-14 Dr. Arvind Kanwar that the death had occurred due to smothering manually by using hands. Even DW-3 Veena Devi has admitted that she had produced the bag Ex. P2 in which the body of the deceased was concealed and the towel Ex. P1 which was found placed on the body. She also admits that she had recovered the body near the door of the ''obri''. This is within the house of PW-3 Veena Devi wherein the accused was residing with her. No other person could have been present there. Nor is there any suggestion that some other person was present in the house.
34. It is true that there is no direct evidence to prove that the accused had killed the deceased. The present case of the prosecution is based on circumstantial evidence. It is by now well settled that in a case based on circumstantial evidence, the Court can record conviction but before doing so it must satisfy itself that the circumstances from which inference of guilt could be drawn had been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but complete the chain so fully as to unerringly point only to the guilt of the accused. It is a well settled principle regarding circumstantial evidence, that the circumstances forming that evidence must be conclusively established and even when so established, they must form such a complete chain that it is not only consistent with his guilt but is inconsistent with any reasonable hypothesis of innocence. In case
It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstances which may reasonable be considered consistent with the innocence of the accused....
35. In case of
Where the inference of guilt of an accused person is to be drawn from circumstantial evidence only those circumstances must in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.
36. In the light of the aforesaid settled proposition of law, it is clear that in case of circumstantial evidence this Court must be convinced that all the circumstances considered together lead to only one conclusion pointing towards the guilt of the accused before he can be convicted. In case of doubt the benefit shall have to be given to the accused. In the present case, the following circumstances unerringly lead to the conclusion that it was the accused and none else who was guilty of the offence: (i) that the deceased was sent to the house of the accused and PW-3 Veena Devi by PW-1 his mother; (ii) that the deceased was last seen a short time before his death playing with the accused; (iii) the dead body of the accused was recovered from the house in which the accused resided along with PW-3 Veena Devi; (iv) that it was PW-3 Veena Devi who recovered the dead body hidden in a gunny bag under the ''Sail''; (v) that while efforts were made to revive the deceased the accused remained silent and aloof sitting in the verandah taking no part in the activity; (vi) that the accused made an extra judicial confession in the presence of PWs 1, 2 and 5 and (vii) that the mode of death as given in the extra judicial confession is consistent with the injuries as noted in the post-mortem and the opinion of the doctor regarding the cause of death.
37. In view of the above proved circumstances, we are convinced that there is only one conclusion which can be reached by this Court and that is that the deceased was murdered by the accused.
38. Now we come to the question as to whether the accused is entitled to the benefit of Section 84 Indian Penal Code Section 84 of the Indian Penal Code reads as follows:
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 is either wrong or contrary to law.
39. It would also be necessary to mention that u/s 105 of the Indian Evidence Act the burden of proving the existence of the circumstance bringing the case within any of the general exception in the Indian Penal Code is upon the accused and the Court shall presume the absence of such circumstances. In
(5)...It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, u/s 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. u/s 105 of the Evidence Act, read with the definition of "''shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider, the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden u/s 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of a judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.
(7) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code; the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) 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.
40. The law as laid down in this authority has been followed in a number of judgments such as AIR 1970 Goa 1 ; 1970 CriL.J. 1641.
41. Mr. Som Dutt Vasudeva, learned Additional Advocate General appearing for the State has cited a judgment of the Hon''ble Apex Court in case
12. To establish that the acts done are not offences u/s 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the Appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offence, he was laboring under any such incapacity? On this question, the state of his mind before and after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution.
42. He also cited the case of
43. We shall now assess and appraise the evidence in view of the law as laid down by the Hon''ble Apex Court in the judgments referred to above. The statement of PW-3 Veena Devi who also appeared as DW-3 as well as the statement of PW-13 and other defence witnesses especially DW-6 is relevant for deciding this point. The accused is stated to have left school in class 8th due to mental illness. It is also stated that in November, 1999 he had been under treatment of DW-6 and remained in hospital as in door patient from 26-11-1999 to 30-11-1999. However, no record has been produced to show as to what was the ailment which was diagnosed. There is only the oral testimony of DW-6 that the accused was suffering from major mental disorder-schizophrenia and that he had been given electric shock thrice. The only documentary evidence produced on record by DW-6 is the patient diary Ex. DB, which is totally silent with regard to the diagnosis of the illness or the treatment given by way of electric shock. Only the medication administered to the patient is given in this diary. The oral evidence of the DW-6 which is not supported by any contemporaneous documentary evidence does not inspire confidence. The other witnesses D Ws No. 1 and 2 have only talked about the behaviour of the accuaed in jail which was erratic and he used to remain quiet. These witnesses have admitted that they are not psychiatric experts. DW-4 the Medical Officer of the jail has described the accused as a mental case but he also admits that he is not a psychiatric expert and therefore he is not in a position to give final opinion, and as such, he had referred the accused to the Psychiatric Department in IGMC, Shimla. The statement of other witnesses including PW-3 Veena Devi goes to show that though the accused used to remain aloof and quiet he used to look after his own self and did all his routine work and that he used to obey all the command of the relatives for doing domestic work.
44. On the other hand, PW-13 who is head of the department of Psychiatric after having observed the accused for one day as a out door patient and after admitting him as an indoor patient for more than eight days from 30-6-2000 to 8-7-2000 has come to the definite conclusion that the accused is not suffering from any mental disorder but is only suffering from behaviour disorder. He has given a categorical opinion that the accused is fit to face trial. Further there is nothing on record to show that at the time of commission of offence itself the accused at that time by reason of unsoundness of mind was incapable of knowing the nature of the act or that he was unaware that he was doing something which was either wrong or contrary to law. Even during the course of the trial the accused was represented by Counsel and his behaviour was never noted to be so abnormal as to treat him as a mentally unsound person. From the statement of accused u/s 313 Code of Criminal Procedure it is seen that the accused has answered all the questions clearly and properly and after comprehending the same. Therefore it cannot be said by any stretch of imagination that the accused was insane or was suffering from such mental disorder that he was incapable of comprehending that he was doing an illegal or wrong act. Therefore he is not entitled to the benefit of Section 84 of the Indian Penal Code and cannot claim his acquittal on the ground that he is of insane mind.
45. For the reasons stated above, we do not find any good reason to upset the conviction and sentence imposed upon the accused by the learned Sessions Judge, Chamba u/s 302 of the Indian Penal Code.
46. In the result the appeal is devoid of merits and is accordingly dismissed. The case property be dealt with as per order/direction of the trial Court.
We place on record our appreciation for the invaluable assistance rendered to us by Mr. Sanjeev Kuthiala, amicus curiae.
