State of Orissa vs Bagh Syama

P.K. Mohanti, J.—This appeal has been preferred by the State against a judgment of the learned Sessions Judge of Koraput acquitting the accused of the charge u/s 302, Indian Penal Code.

Accused Bagh Syama aged about 51 years stood charged u/s 302, Indian Penal Code with having committed the murder of his wife Bagh Subhadra on the night of 12th April, 1971. It was alleged that while Bagh Subhadra was sleeping on the verandah of the house the accused approached her with an axe at about 3 a.m. and gave successive strokes on her neck as a result of which she died instantaneously. A hulla raised by p.w. No. 3 Bagh Ramachandra, the minor son of the accused attracted the attention of the neighbours who came to the spot and found the accused standing in his courtyard with the blood-stained axe in his hand. The accused told p.w. 1 Surjya Gobinda at that time that as his wife did not supply fire he became irritated and killed her. P.w. 4 Prafulla Chandra Mohapatra took the axe from the hand of the accused and kept it in his house. On the next day, that is, 13-4-1971 at about 10 a.m. p.w. 1 lodged information before the A.S.I. at Muniguda Out-post who made a station diary entry and took up preliminary investigation. Subsequently the Officer-in-charge of Bissam Cuttack Police Station investigated into the case and submitted charge-sheet.

The accused pleaded not guilty to the charge. During his examination by the committal Court he stated that due to unsoundness of mind he could not know what he did. In the Sessions Court he did not take the plea of insanity. He denied the occurrence and pleaded innocence.

At the trial, prosecution examined eight witnesses of whom p. ws. 2 and 3, the two sons of the accused were died as eyewitnesses to the occurrence. P. ws. 1, 4 and 5 are the neighbours who arrived at the spot Immediately after the incident and they deposed that the accused admitted before them to have committed the murder. P.w. 6 is the Investigating Police Officer and p.w. 8 is the Medical Officer who performed the post-mortem examination over the dead body. The accused did not adduce any evidence in support of the plea of insanity.

The learned Sessions Judge on a consideration of the evidence adduced by the prosecution came to the finding that the accused had intentionally caused the death of his wife, but acquitted him on the ground that by reason of unsoundness of mind he was incapable of knowing the nature of his act. On appeal it is urged that there is no material on record to support the plea of insanity and that the order of acquittal is clearly erroneous and cannot be sustained in law.

On a careful appraisal of the entire evidence on record no doubt is left in out mind that the wife of the accused died on the night of 12-4-1971 and that the death was homicidal. P. ws. 2 and 3 who are nonelse but the sons of the accused categorically stated that they had seen their father committing the murder of their mother in that night. P.w. 2 specifically stated that he had seen the accused assaulting the deceased with the axe M.O.I.. His evidence is quite consistent with the medical opinion regarding the cause, nature and location of the injuries found on the dead body of the deceased. The evidence of p. ws. 1, 4 and 5 shows that immediately after the occurrence they came to the spot and found the accused standing there with the blood-stained axe in his hand. On enquiry, the accused told them that he was ill and his wife did not supply fire though asked for; so he became irritated and killed her. Their evidence has not been shaken in any manner. Though the accused denied having made any extra-judicial confession before these witnesses it has not been shown that these witnesses bore any ill-will against him. There is no apparent reason why these witnesses would falsely implicate the accused in a serious crime. Their evidence to the above effect is also corroborated by p.w. 2 the son of the accused. It transpires from the evidence of p.w. 3 that in the night of the occurrence there was no other adult member in the house except his parents. The murder took place in the residential house of the accused at night and the accused had not furnished any explanation as to how the injuries were caused on the neck of his wife which resulted in her death. The Medical Officer p.w. 8 who performed post-mortem examination of the dead body of the deceased found the following injuries:

(i) Incised wound 4" x 2" x 21/2" over the right side of the neck.

(ii) Incised wound 2" x 11/2" x 1" over the front of the neck immediately below the thyroid cartilage.

(iii) Incised wound 11/2" x 1" x3/4" present in between injury Nos. (i) and (ii).

Internal examination revealed that the right carotid artery had been completely severed. The trachea was also found to be cut. In the doctor''s opinion all the injuries were ante-mert in nature axe might have been caused by a sharp cutting weapon like the axe M.O.I.P. ws. 1 to 5 identifies the axe M.O.I. as the weapon of offence which they found in the hands of the accused at the spot immediately after the incident. Considering all the facts and circumstances we have no hesitation in holding that the accused is the author of the murder.

The next question that arises for consideration is whether the accused is entitled to the protection u/s 84, Indian Penal Code. This 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 of that he is doing what is either wrong or contrary to law. To be entitled to the protection of this section, the person must be not compos mentis at the time of the commission of the crime. The law presumes every person of the age of discretion to be sane unless the contrary is proved; and even if a lunatic has lucid intervals the law presumes the offence to have been committee by such person in a lucid interval unless it appears to have been committed during derangement vide ''Russell'' on Crimes. 10th Edition page 45. Section 115 of the Indian Evidence Act throws the burden of proving the existence of circumstances bringing the case u/s 84, Indian Penal Code on the accused and directs "the Court shall presume the absence of such circumstances," In the case of Dahyabhai Chhaganbhai Thakkar v. State of Orissa AA.I.R. 1964 S.C. 1563, the Court said:

.... The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.

This view was reiterated in Ratan Lal Vs. The State of Madhya Pradesh, .

In Bhikari Vs. State of Uttar Pradesh, , it was laid down as follows:

.... Now it is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Everyone is presumed to know the natural consequences or his act. Similarly everyone is also presumed to know the law. These are not facts which the prosecution has to establish. It is for this reason that Section 105 of the Evidence Act places upon the accused person the burden of proving the exception upon which he relies....

.... Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he contributes it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to acquittal. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act.

With the above principles in mind, let us consider the evidence to find out whether the accused was insane at the time of commission of the offence. P. ws. 2 and 3 gave evidence in a general way that their father was mad and that due to madness he was not taking his food and was hurling abuses. These witnesses introduced the story of insanity of the accused for the first time in the Court of Sessions. Their evidence does not disclose that the accused was suffering from unsoundness of mind when he committed the crime. They are sons of the accused and their evidence is naturally interested. According to p.w. 2, the accused was treated in a Hospital for two days but neither the doctor has been examined nor the records of the Hospital have been produced to show the nature of the disease the accused was suffering from. P.w. 4 is a school teacher and p.w. 5 is a close neighbour of the accused. They did not support the plea of insanity of the accused. The very fact that immediately after the occurrence the accused admitted before p. ws. 1, 4 and 5 that he became irritated when his wife did not supply fire and killed her would go the show that he was conscious of the consequences of his act. The mere fact that he made no attempt to run away from the spot would not indicate that he was insane or that he did not have the necessary means rea for the commission of the offence. The manner in which he committed the murder does not leave any room for doubt about his mental condition at that time. He selected a deadly weapon and dealt violent blows on a vulnerable part of the body while the deceased was sleeping at night. This shows that the accused committed the act with some previous deliberation and preparation. On a reference to the order-sheet of the Magistrate''s records, it appears that on 23-4-1971 the accused was produced in Court for recording of his confessional statement. After the Magistrate disclosed his identity and gave the necessary warning the accused declined to make any confession. The records do not reveal that the accused behaved in any unusual manner either at the time of his arrest or at the time of his production in Court. These aspects have been completely overlooked by the trial Court. The settled principles of law have not been kept in mind and correct inferences have not been drawn from the facts proved in the case. On account of the mis-appreciation of the evidence of the witnesses wrong conclusions have been drawn on proved facts. We have careful scrutinised the evidence, bearing in mind the principles governing appeals against acquittal and have come to the conclusion that there is no evidence on record from which it can be reasonably inferred that at the time of commission of the offence, the accused did not know that what he was doing was either wrong or contrary to law. He is therefore not entitled to the benefit of Section 84, Indian Penal Code.

In the result, the appeal is allowed, acquittal being set aside. The accused is convicted 302, Indian Penal Code and sentenced to undergo for life the order of u/s imprisonment

R.N. Misra, J.

I agree.