Sitaram s/o Mangilal vs State of Madhya Pradesh

THE appellant has filed the present appeal against the judgment dated 25.03.2008 passed by the Sessions Judge, Dhar in Sessions Trial

No.180/2007 by which he has been convicted under Section 302 of IPC on 2 counts and sentenced to undergo life imprisonment with fine of

Rs.100-100, in default of payment of fine 15-15 days'' RI respectively.

As per the prosecution story, on 31.05.2007 near about 6.00 am in the morning Punibai - mother of accused was cleaning the utensils and his

father Mangilal was sleeping on bed. The accused demanded some money from Punibai, when she refused, then the accused took out a Sword

from the house and inserted in the chest of Punibai. Thereafter he has cut the throat of Mangilal. The entire incident was witnessed by his sister

Chhotibai (PW-4) aged about 9 years. She immediately came out from the house and called his brother Ditiya (PW-5) and narrated the story.

When Ditiya came to the house, by that time his father and mother both have died.

Galsingh (PW-2_ of Village Balipur gave information of aforesaid incident to Juwansingh (PW-1) Sarpanch of Village Lunhera who in turn

telephonically informed the police station. B.K.Chhari, Station House Officer, Police Station Dharampuri, District Dhar (PW-10) rushed to Village

Balipur and lodged the Dehati Nalisi (Ex.P/4). Thereafter spot map (Ex.P/8) was prepared. The dead body of Punibai and Mangilal were

recovered vide Exs.P/1 and P/9 respectively. The blood stained soil was seized vide seizure memos Exs.P/2 and P/3. The dead body of both the

deceased were sent for postmortem. The accused was arrested on 31.05.2007 along with Sword which was seized vide seizure memo Ex.P/9 and

the T-shirt of the accused was seized vide Ex.P/12.

Dr. Mohan Gupta (PW-12) had examined the dead body of Punibai and found the following injuries :-

(1) Incised wound over middle of chest 10 cm x 3 cm x muscle deep (Transvers).

(2) Incised wound 5 cm x 3 cm x bone deep at right Arm lateral aspect.

(3) Incised wound 10 cm x 5 cm x 2 cm over right elbow.

(4) Contusion 3 cm x 2 cm over right outer right elbow of eye.

(5) Incised wound 3 cm x 2 cm x soft tissue on left axillary.

(6) Incised wound at right side of back 2cm x 1/2 cm x soft tissue sub scapular region (Rt).

Dr. Mohan Gupta had also examined the dead body of Mangilal and found 10 cm x 10 cm x soft tissue in left side of neck.

As per opinion of Dr. Mohan Gupta, both have died due to excessive bleeding and all the injuries were ante mortem. The injury received on the

chest of Punibai was sufficient to cause her death and all the injuries were caused within 24 hours of postmortem. The postmortem reports are

marked as Exs.P/14 and P/15 respectively.

After completing the usual investigation, the challan was filed and the trial was committed to the Sessions Court. The accused abjured the guilt

and charge under Section 302 of IPC on 2 counts was framed against him.

In order to prove the incident and the offence committed by the accused, the prosecution examined the daughter of the deceased - Chhotibai

(PW-4); Ditiya (PW-5) brother of the deceased; Rukmabai (PW-6) wife of Ditiya and other witnesses namely Juwansingh (PW-1); Galsingh

(PW-2); Sardar (PW-3); Rameshwar (PW-7); Arjun Singh (PW-8); Munnalal (PW-9); B.K.Chhari (PW- 10); Tikam (PW-11) and Dr. Mohan

Gupta (PW-12).

The learned Sessions Court after appreciating the evidence, documentary as well as oral, came to the definite conclusion that the accused has

caused the murder of his father and mother and convicted him under Section 302 of IPC on 2 counts and sentenced as stated above. Hence, the

present appeal before this Court.

The appellant has filed the appeal on the ground that the prosecution has failed to prove the case against the accused beyond all reasonable

doubt. There is omissions and contradictions in the statement of the witnesses. The statement of Chhotibai (PW-4), who is a child witness, has

wrongly been believed by the Court. Her statement is not corroborated by other witnesses. All the other witnesses are hear-say witnesses and

cannot be held reliable witnesses. There was no motive or mens rea behind the murder. The appellant took a defence of Section 84 of IPC as he

was not mentally balanced since last 3 - 4 months from the date of incident and mental treatment was going on. He was not aware about the

consequences of the act committed by him. Therefore, the punishment of life imprisonment is too severe for him. His brother Ditiya (PW-5). and

brother''s wife Rukmabai (PW-6). admitted in the cross-examination that accused Sitaram is suffering from mental imbalance. Hence, the

conviction is bad-in-law and liable to be set-aside.

The Public Prosecutor appearing for the Respondent/State has argued in support of the judgment by submitting that Chhotibai (PW-4) though

minor witness but she was capable of giving the evidence in the Court and the Court after verification has believed her statement. The other

witnesses have also supported her version. The accused was arrested along with the Sword after committing murder of his own father and mother,

therefore, he has rightly been convicted by the Court hence no interference is called for.

As per postmortem reports and the statement of Dr. Mohan Gupta (PW-12), both Punibai and Mangilal died due to the injuries received by

them. Since the appellant has not challenged that finding on merit, therefore, it is not necessary for this Court to discuss again. Hence, the finding

recorded by the Sessions Court are hereby up held in respect of death of Punibai and Mangilal.

The only question is under consideration whether the accused has committed murder of his own father and mother.

In order to prove the case, the prosecution examined Chhotibai (PW-4) who is a real sister of accused and daughter of the deceased. The

Court has asked as many as 19 questions to her and she has answered all the questions correctly. The Court has found that she is capable of giving

the evidence in the Court. She has specifically stated that she was alone in the house and the accused Sitaram was also there. When the Court has

asked that what has happened in the house, then she has stated that accused Sitaram has caused the murder of father and mother by Sword

because he was demanding money and mother has refused. She has also narrated how the accused has caused the injuries to mother and father.

The prosecution examined Ditiya (PW-5) i.e. brother of the accused, who deposed that Chhotibai (PW- 4) has informed him that Sitaram has

killed his father and mother. When he reached to the home, they have already died and at that time the accused was inside the home. The

prosecution examined Rukmabai (PW-6), wife of Ditiya (PW-5), who also reached the house immediately after the incident. She has also stated

that when she was near the mother, then accused Sitaram has tried to attack on her by Sword then she immediately ran away. She has supported

the case of the prosecution to the extent that the accused was having Sword and was near the dead body of both the deceased.

The prosecution examined Juwansingh (PW-1) who is Sarpanch of Village Lunhera. He reached to the scene of crime on an information given

by Galsingh i.e. PW-2. When he reached to the house of the deceased, he saw that the dead body of Mangilal and his wife were lying there. Then

he asked from Chhotibai (PW-4) about the incident then she informed that her brother has killed them by Sword. Galsingh (PW-2) has also

reached to the scene of crime along with PW-1. The prosecution has examined the seizure witnesses who have also proved the seizure

proceedings. The defence counsel has failed to prove that the accused was suffering from mental imbalance and under going treatment but no

documents and no evidence has been produced in respect of his mental condition. The Apex Court in the case of Shrikant v/s State of

Maharashtra AIR 2002 SC 3399. has that :

The burden to prove that the appellant was of unsound mind and as a result thereof he was incapable of knowing the consequences of his acts is

on the defence. Section 84, IPC is one of the provision in Chapter IV, IPC which deals with ""general exceptions"". That section 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 he is doing what is either wrong or contrary to law. The burden of proving the existence of circumstances bringing the case within

the purview of S.84 lies upon the accused under S. 105 of the Indian Evidence Act. Under the said section, the Court shall presume the absence

of such circumstances. (Illustration (a) to S. 105 is as follows) :

(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.

In the case of Sherali Wali Mohd. V/s State of Maharashtra AIR 1972 SC 2443], the Apex Court has held that :

In order to see whether the accused was insane at the time of the commission of the offence, the state of his mind before and after the commission

of the offence is relevant. 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 crime. The mere fact that no motive has been

proved why the accused murdered his wife and child or, the fact that he made no attempt to run away when the door was broken open, would not

indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offence.

In view of the above, the appellant is not entitled for the benefit of Section 84 of IPC as no material have been produced before the Sessions

Court as well as before this Court to the effect that at the time of incident he was of unsound mind and was incapable of knowing the

consequences of his acts. He demanded the money from his mother and when she refused, then he caused the murder. Therefore, this conduct

shows motive behind the murder but not the act of his unsound mind.

In the result, we do not find any reason to interfere in the impugned judgment. Hence, the appeal is hereby dismissed. The conviction and

sentence imposed by learned Trial Court are hereby affirmed.