Madga @ Lusu @ Chandramohan Majhi vs The State

S. Acharya, J.—The Appellant stands convicted u/s 302, Indian Penal Code and has been sentenced thereunder to undergo R. I. for life.

The prosecution case, in short, is that on the night of 24/25-6-1974 there was theft of some articles from the house of the deceased Mochiram Majhi. The deceased suspected his nephew, the accused, to have committed the said theft. In the morning of 28-6-1974 the deceased went to the house of the accused and found some of the stolen articles in the accused''s house, and he brought back those articles to his house. At about 5 p. m. on the same day the deceased again went to the house of the accused with the hope of getting some more stolen articles. At that time the accused assaulted the deceased with an axe as a result of which the deceased died at the spot. Thereafter the accused brought a knife from his house and cut the scrotum and the penis of the deceased and set fire to his wearing cloth. P.Ws 2 and 5, two co-villagers, saw the occurrence from close quarters and immediately informed the villagers about the occurrence. P.Ws 6 and 8 lodged information about the occurrence at the Rairangpur Police Station at about 7 p. m. on the same day. After investigation and commitment proceeding the accused was tried for an offence u/s 302. Indian Penal Code of which he has been convicted.

The accused has denied his complicity with the occurrence in toto, and has stated that a false case has been foisted against him.

P.W. 1, on post-mortem examination, found the following injuries on the deed body of the deceased ;

(1) 3" x 4" of the scalp was absent irregular in margin, extending form right temporal to left parietal and occipital to frontal.

(2) Frontal, parietal, a portion of right temporal occipital bone were absent.

(3) Temporal, parietal, frontal, occipital portion of the membrane were absent.

(4) Brain and spinal chord - brain matter was completely absent in the cranial cavity. Spinal chord in tact.

(5) Right chamber of the heart contained clotted blood and left chamber of the heart was empty.

(6) Lacerated tongue and gums of both sides and comminuted fracture of the mandible and palate bone.

(7) Right eye ban was absent, teeth were absent, external genital and penis and scrotum were absent completely with a portion of surrounding skin.

(8) A'' piece of 3" X 4" size held burnt cloth was present in right hand.

(9) A big blister was present in right dorsum of the palm and the left hand 3 fingers (middle, ring and little) were burnt and blisters were found.

(10) Blisters were seen in the back of the body. (11) Multiple burnt blisters were seen in both legs and thigh.

P.W. 1 has opined that the death of the deceased was due to the injuries on his vital organs like the brain and that the brain injury was sufficient in the ordinary course of nature to cause the death. From the nature and number of the injuries on the dead body, there is absolutely no doubt that the death of the deceased was homicidal. The finding of the Court below on this aspect is not challenged by the counsel appearing for the Appellant.

P.Ws 2 and 5 are the two eye witnesses to the occurrence. The Court below on an elaborate and convincing discussion and consideration of the evidence of the eye witnesses has arrived at the finding that it was the accused who inflicted the said injuries and thereby intentionally caused the death of the deceased.

P.W. 2 has stated that at about 4 p.m. on the date of occurrence the deceased went to the house of the accused. At that time he and P.W. 5 were standing on the village road near the house of the accused. From there they saw that when the deceased went near the house of the accused, the accused came out with the axe M. O. I in his hand, and with that axe he dragged the neck of the deceased as a result of which the deceased fell down on the ground. Then with the back side of the axe the accused gave 5 to 6 strokes on the head of the deceased as a result of which the deceased died at the spot. Thereafter the accused went inside his house and came back with a knife, and with the same he cut the scrotum and the penis of the dead body and then set fire to the wearing cloth of the deceased. P.W. 5 has corroborated P.W. 2 in all material particulars. Their evidence has not at all been successfully assailed in any manner by the defence. On a perusal of their evidence and its discussion in the impugned judgment and on hearing the counsel appearing for both the parties we are convinced that the finding of the Court below, that in this case it is established beyond reasonable doubt that the accused assaulted the deceased in the aforesaid manner and thereby caused his death, is perfectly correct.

Mr. Mohapatra, the learned Counsel for the Appellant, has not successfully assailed the above finding of the Court below.

Mr. Mohapatra, however, states that from the manner in which the accused behaved and conducted himself at the time of the occurrence it appears that he was then acting under insanity and he committed the said acts. There is absolutely no evidence on record that the accused at the time of the occurrence was insane or that just prior to or after the occurrence he exhibited any signs of insanity. It is well settled that the defence must establish certain circumstance, either by its own evidence or from the prosecution evidence, from which existence of legal insanity can reasonably be inferred. The accused in law cannot seek protection under the plea of insanity unless it is shown that the cognitive faculties at the accused are as a result of unsoundness of mind completely impaired. It is well settled that in order to constitute legal insanity, unsoundness of mind must be such as to make the offender incapable of knowing the nature of his act or that whatever he is doing is wrong or contrary to law. Law presumes every person of the age of discretion to be sane unless the contrary is proved. To enable the accused to take shelter u/s 84, Indian Penal Code it is of course not necessary for him to prove beyond reasonable doubt that his unsoundness of mind was of the said nature; the burden of proving that fact on him is just that which rests upon a party in a civil proceeding.

The accused in his statement 10 the Court below has not stated that at the time of the occurrence he was acting under insanity. There is absolutely no evidence on record to show that the accused at the time of the occurrence was acting under such defect. P.W. 2 in his cross-examination has categorically stated that the accused was not mad at the time of the occurrence. No effort was made during the hearing of the case to elicit any fact indicating insanity of the accused at the time of the occurrence. The accused was in the Jail for a long time and there is nothing on record to show that the accused ever behaved as an insane person at any time, during his stay there. Mr. Mohapatra draws our attention to one sentence in the F. I. R. where it is stated that the accused previously had become insane and that for in few days just prior to the occurrence he was showing some signs of insanity. That statement in the F. I. R. is not substantive evidence in this case. Moreover, P.W. 6, on whose information the said F. I. R. was recorded, has categorically stated that "It is not a fact that I stated before the police in the F. I. R. that the accused had gone mad some time before, and for some days past his madness seems to have revived." Thus it is risky to act on such a statement in the F. I. R. Without anything on record to show that the accused was labouring under legal "insanity at the time of the occurrence, it is not possible for us to presume existence of insanity so as to bring the case of the accused u/s 84, Indian Penal Code.

On the evidence on record we are satisfied beyond reasonable doubt that the conviction of the accused u/s 302, Indian Penal Code is well-founded, and we do not see any reason to interfere with the same.

Accordingly the conviction of the accused u/s 302, Indian Penal Code and the sentence passed thereunder against him are confirmed and the appeal is dismissed.

J.K. Mohanty, J.

I agree.

Appeal dismissed.