Bhagirath vs State of M.P.

S.K. Seth, J.—Facts leading to this appeal are quite simple but heart rending. Appellant stands convicted of an offence punishable u/s 302 IPC and was sentenced to undergo life imprisonment and fine of Rs. 500/- with default stipulation. About the following facts, there is no dispute at this stage.

On the fateful day at about 9 or 9.30 in the morning, appellant was going on an open road carrying his infant son aged about 6 months on his arm. Near village Katchariya, a Tata Sumo was coming from the opposite direction and was being driven by Shantilal (PW 2) and Dr. Rakesh Yati (PW 1) and Katcharmal (PW 15) owner of the vehicle were travelling in said vehicle as passengers. The said infant suffered injuries and was first taken to the Police Station Pipliya-Mandi along with the father where FIR Ex. P. 1 was recorded at 10.10 am and a case was registered u/s. 307 IPC. Later on the infant succumbed to the injuries therefore, the appellant stands charged for the homicidal death of his infant son.

Prosecution case in brief is as under. At the time of the incident, the appellant threw something towards the moving vehicle when it was crossing him and this was seen by passenger Dr. Rajesh Yati (PW 1), who caused the vehicle to stop to investigate matters. On the vehicle stopping, Dr. Rajesh Yati(PW 1); the driver Shantilal (PW 2) and owner-cum-passenger Katcharmal (PW 15) got down and found a seeming bundle of clothes lying behind the vehicle. It was then discovered that it was in fact the infant son of the appellant which appeared to be a bundle and the child was injured. The appellant was apprehended on the spot by the said witnesses and taken to the Police Station as stated above in the admitted facts. The autopsy was performed on the dead body by Dr. A.K. Gulati (PW 18) same day at about 12 noon and Ex. P. 6 is the autopsy report. The report found a crushed wound on head and exposing the skull and tear of the scalp. Dr. Gulati further found that skull bones were crushed into many pieces in temporal occipital region. Cause of death was the head injury sustained within six hours of the autopsy.

With this material, prosecution case was that appellant-father had caused the homicidal death of his infant son.

The appellant abjured his guilt and stated that the cause of death was the vehicle dashing the infant which was an accident and the occupants of the vehicle to save themselves had falsely implicated him. The appellant has examined Gopal (DW 1) as his defense witness in this behalf.

The trial Court rejecting the defense version as worthless and relying on the prosecution story has convicted the appellant to life imprisonment with fine of Rs. 500/- with default stipulation.

The point strenuously urged before us was about the legal insanity of the appellant. A feeble attempt was also made about the accident theory of the vehicle striking the child; and the offence would not travel beyond Section 304(11) of the IPC. In support of alleged insanity, considerable stress was laid on unnatural conduct of a father committing infanticide and we were taken through the evidence minutely. We may state that no evidence in this regard was led by the defense and what is more no suggestion was made to prosecution witnesses during their cross-examination about alleged insanity.

Mention may be made of the fact that this Court on 11.9.2012 at the request of appellant''s counsel (he stated that as per his knowledge the appellant was admitted in the mental ward and was undergoing treatment at Central Jail, Ujjain) this Court ordered the Government Advocate to submit a report regarding the current health status of the appellant. In compliance of that order, the appellant was referred by the Jail Authorities to Indore and the appellant was examined by Psychiatrist Dr. Sardesai of the M.Y. Hospital Indore. His report dated 2.10.2012 is on record. The report significantly states that the patient has ''feelings of dirt'' and complains of ''bathing''; ''Depression'' with a belief that some people will harm him; both the ''depression'' and the ''obsession'' still exist; patient is under treatment for both and is showing improvement.

It cannot by any stretch of imagination be said that this report of the expert leads to a conclusion that the appellant suffered from insanity, much less legal insanity at the time of the incident. As already stated, the appellant made no effort to lead any evidence touching his alleged insanity. It was reasonable to expect any number of witnesses coming forward to testify about his erratic or mad behavior. The one defense witness examined Gopal (DW 1) is silent on the subject.

The law on the subject of insanity is very clear. Section 84 IPC deals with legal insanity as a general exception to an offence punishable under the Penal Code or under any special or penal law. This section lays down the legal test of responsibility in cases of alleged unsoundness of mind. Under it, a person is not guilty of an offence, who at the time of doing such act 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. This is known as Mc''Naghten''s Rule. The burden of proving insanity or non-compos mentis lies on the accused. It is for him to establish that his cognitive faculties were lost due to aberration of mind. In other words, defense of unsoundness of mind being one of the general exceptions to criminal liability, the prosecution having established the main ingredients of the offence the burden to prove insanity at the time of occurrence is on the defense. Everyone is presumed to know the nature or consequences of his act. The accused may rebut this presumption with cogent and reliable evidence about his insanity.

Let us now consider whether the prosecution has succeeded in establishing the case put up against the appellant. The evidence of the eye witnesses for the prosecution lies in a very narrow compass, viz. the evidence of the two co-passengers Dr. Rajesh Yati (PW 1) and owner Katcharmal (PW 15) and the driver Shantilal (PW 2). Dr. Yati (PW 1) who was just sitting behind the driver has stated thus:- he saw the appellant throwing something toward the moving vehicle when the vehicle had nearly crossed the accused and the accused had come abreast of the witness; he asked the driver to stop and upon the vehicle being stopped, the passengers and the driver got down to investigate matters; they found a sort of bundle lying on the road and in that bundle they found an infant, instead of bundle of clothes as earlier thought. This version is fully corroborated by the testimony of driver Shantilal (PW 2) and Katcharmal (PW 15). The trial Court has relied on this evidence, and this reliance cannot be faulted.

We now come to the defense evidence. The accused has examined only one witness viz. Gopal (DW 1). His examination-in-chief clearly reveals that he is not an eye witness to the incident. All he has to say is that when he was going as a pedestrian, he heard the "Jeepwala" shouting all the way that the child met with an accident. In cross examination, he confessed that he was not aware that the appellant had thrown the child under the vehicle. In these circumstances no value attaches to the defense version and the trial Court rightly discarded that version. In the facts and circumstances of the case we also find that offence would not be covered by Section 304(11) of the IPC and there is no merit in the submission on that behalf.

From the above it seems to us that in this very unfortunate case, the appeal has no substance and as such deserves to be and is hereby dismissed. Ordered accordingly.