CRLA/513/2009 of Sabavath Naik, Vs The State of A.P., on 30 December 2013

HON'BLE SRI JUSTICE K.C. BHANUANDHON’BLE MRS JUSTICE ANIS

CRIMINAL APPEAL No.513 of 2009

JUDGMENT:- (per Hon’ble Sri Justice K.C. Bhanu)

This Criminal Appeal, under Section 374 (2) of the Code ofCriminal Procedure, 1973 (for short, "Cr.P.C."), is directed against--the judgment, dated 08072008, in Sessions Case No.306 of 2007on the file of the Principal District and Sessions Judge, Medak atSangareddy, whereunder and whereby, appellant/accused wasfound guilty of the offences punishable under Sections 302 and324 of the Indian Penal Code, 1860 (for short, ‘IPC’) andaccordingly, he was convicted and sentenced to undergo-imprisonment for life and to pay a fine of Rs.500/ (Rupees fivehundred only), in default to suffer simple imprisonment for threemonths for the offence punishable under Section 302 IPC andfurther he was convicted and sentenced to undergo rigorous-imprisonment for three years and also to pay a fine of Rs.200/(Rupees two hundred only), in default to suffer simpleimprisonment for one month for the offence punishable underSection 324 IPC and both the sentences were directed to runconcurrently.

2. The prosecution case in brief may be stated as follows:

Banaoth Dhani Bai (hereafter referred to as ‘the deceased’)is no other than the wife of PW1. They are residents ofRyalamadugu village living by labour work. The accused is alsoresident of the same village. On 05-02-2007 at about 11.00 a.m.,while PW1 and the deceased were proceeding near the land of the accused, the accused attacked both of them with a knife andcaused severe bleeding injuries for the reason that the deceasedwas practicing sorcery in the village. The persons present shiftedthe deceased to Government Hospital, Narayankhed for treatment.On receipt of hospital intimation from the Government Hospital,Narayankhed, PW12 proceeded to the hospital and recordedEx.P1 statement from PW1 and registered a case in Crime No.10of 2007 under Sections 307 and 324 IPC.

Sub-Inspector of Police, Narayankhed proceeded to thescene of occurrence and observed the scene of occurrence in thepresence of PW9 and others. He prepared Ex.P8 scene ofobservation panchanama and also Ex.P9 rough sketch of thescene of occurrence. He examined PWs.1 to 6 and recorded theirstatements under Section 161 (3) of Code of Criminal Procedure,1973. For better treatment, both PW1 and the deceased wereshifted to Gandhi Hospital, but on the way to the hospital thedeceased succumbed to the injuries. On receipt of the deathintimation, PW12 altered the Section of law from 307 IPC to 302IPC. On the next day, he conducted inquest on the dead body ofthe deceased in the presence of PW7 and others under Ex.P3.PW13 took up further investigation and arrested the accused on08-02-2007 at about 11.30 a.m. The accused said to have givenconfessional statement as in Ex.P6. In pursuance of the saidconfession, accused took the police and mediators to his houseand produced a knife M.O.1. The same was seized under Ex.P7panchanama. The Doctor who conducted autopsy on the deadbody of the deceased opined that the deceased died as a result ofhead injuries. After receipt of report from the Forensic ScienceLaboratory and after completion of investigation PW13 filed chargesheet.

3. The trial Court framed the following charges against the accused:

“FIRST: That you (accused) on or about 05-02-2007 at about11 A.M. at your native Gadda thanda H/o.Rayalamaduguvillage, alleging that Banoth Lokya Naik and his wife, namely,Banath Dhani Bai (since deceased) were practicing sorcery inthe village, attacked them with a knife, stabbed the deceasedon her head and back side, and she succumbed to the stabinjuries on the way to Gandhi Hospial, Secunderabad and thatthereby you committed an offence punishable under Section302 of the Indian Penal Code and within my the cognizance.

SECONDLY: That you on or about the date/place/time statedin first Charge did an act by attacking Banoth Lokya Naik withsuch intention (or knowledge) and under such circumstances,that if by that act you had caused the death of said BanothLokya Naik, you would have been guilty of murder (and thatyou caused hurt to the said Banoth Lokya Naik by the saidact), and thereby committed an offence punishable underSection 307 Indian Penal Code and within my cognizance.

LASTLY: That you on or about the date/place/time stated infirst charge voluntarily caused hurt to Banoth Lokya Naik bymeans of a knife, which is an instrument for shooting (orstabbing, etc.) and thereby committed an offence punishableunder Section 324 of the Indian Penal Code, and within mycognizance.”

When the above charges were read over and explained to theaccused in Telugu, he pleaded not guilty and claimed to be tried.

4. To substantiate the charges, the prosecution examinedP.Ws.1 to 13 and got marked Exs.P-1 to P-15 besides the caseproperty M.Os.1 to 3.

5. After closure of the prosecution evidence, the accused wasexamined under Section 313 Cr.P.C. with reference to theincriminating circumstances appearing against him in the evidenceof prosecution witnesses. He denied the same and did not adduceany oral or documentary evidence.

6. Considering oral and documentary evidence on record, thetrial Court found the accused guilty of the offences punishableunder Sections 302 and 324 IPC, and accordingly, convicted andsentenced him as stated above. Challenging the same, the presentappeal is filed.

7. The points for determination are:

Whether the prosecution proved its case beyond allreasonable doubt against the accused for thecharges under Sections 302 and 324 IPC andwhether the judgment of the trial Court is correct,legal and proper or not?

8. POINTS:- The learned counsel for the appellant contendedthat the accused committed the offence while he was insanity andat the time when he was questioned with regard to the charge, hehas categorically stated that he was suffering with unsoundness ofmind; that the ingredients under Section 302 IPC are not made outas the incident has taken place upon a sudden quarrel without anypre-meditation; that at the time of incident, the accused was notarmed with any weapon, which indicates that he had no intention tokill the deceased and therefore, she prays to set aside theconvictions and sentences.

9. On the other hand, the learned Additional Public Prosecutorcontended that the evidence of PWs.1, 3 and 5 would clearly go toshow that it is the accused who caused injuries to PW1 and thedeceased; that the medical evidence is completely in support withocular testimony; that in view of the fact that the incident hastaken place in a broad day light, the witnesses could be in aposition to identify the assailants; that recovery of M.O.1 is alsoan incriminating fact as it contained human blood; that the burden is on the accused to establish the plea of insanity under Section84 I.P.C. and that the trial Court after elaborate consideration ofevidence on record rightly found the accused guilty and that orderof conviction needs no interference by this Court. Hence, he praysto dismiss the appeal.

10. PW7 is one of the inquest mediators who was present whenPW12 conducted inquest on the dead body of the deceased. Theinquest mediators noticed certain injuries on the body of thedeceased in column No.7 of the inquest report. Similarly, incolumn No.15 the inquest mediators opined that the deceased diedas a result of cut injury on the neck and head.

11. PW11 is the Doctor who conducted autopsy on the deadbody of the deceased, found the following external ante-morteminjuries:

1. Cut injury over the right parietal region and right occipitalregion 10 x 1 x with fracture of the occipital bone, and it isan anti-mortem grievous injury. Like an axe M.O.1 shownto me in the court can caused the injury stated by meabove as it is a sharp edged blunt weapon. The age ofinjury is within six hours.region 10 x 1 x with fracture of the occipital bone, and it isan anti-mortem grievous injury. Like an axe M.O.1 shownto me in the court can caused the injury stated by meabove as it is a sharp edged blunt weapon. The age ofinjury is within six hours.

2. Cut injury over the right parietal region 4 x 1 inch simple innature caused by sharp edged blunt weapon like M.O.1.nature caused by sharp edged blunt weapon like M.O.1.

3. C ut injury over the right side of the neck 5 x 2.5 cmsreddish colour, simple in nature caused by M.O.1.reddish colour, simple in nature caused by M.O.1.

4. Cut injury over the right parietal region to right side of thefore head 5 x 1 cm bony deep simple in nature ante-mortem caused by above weapon.fore head 5 x 1 cm bony deep simple in nature ante-mortem caused by above weapon.

He opined that the deceased died due to hemorrhage and shock asa result of cut injury over the right parietal region, right occipitalregion with fracture of the occipital bone, with collection ofhaematoma in the brain. Injury No.1 is sufficient to cause thedeath in the ordinary course of nature. Ex.P10 is the post mortemexamination report. Practically, the medical evidence remained unchallenged. The medical evidence leaves no room to doubt thatthe deceased died as a result of head injury, which is homicidal innature.

12. Scene of occurrence is not seriously disputed by theaccused. It is situated in Gadda Thanda hamlet of Ryalamaduguvillage near the land of the accused. PW12 observed the scene ofoccurrence in the presence of PW9 and others. Ex.P8 is the sceneof occurrence report and Ex.P9 is the rough sketch. From theevidence it is clear that the scene of occurrence is situated in theoutskirts of Gaddathanda near the lands of the accused.

13. PW1 is the husband of the deceased. According to him,while he himself and his wife were going from their Thanda toRyalamadugu and when they reached the land of the accused, theaccused ascribed that they were doing banamathi (sorcery) and hewas getting mentally upset and brought one knife from his houseand gave a blow on the neck and head of deceased. When PW1tried to intervene, accused caused injuries on the left palm and leftear. Then both were taken to Narayankhed Government Hospitalfor treatment. On receipt of medical intimation from the Doctor,PW12 went to the hospital and recorded the statement of PW1.The earliest version as stated in Ex.P1 would clearly go to showthat it is the accused who caused injuries to his wife and PW1.Recording of Ex.P1 from PW1 by PW12 is not seriously denied ordisputed by the accused and within one and half hour after theincident, First Information Report came into existence. When therecitals in Ex.P1 are not shown to be incorrect or ante-dated, theycan be used to corroborate the evidence of PW1. So, from therecitals in Ex.P1 and the evidence of PW1, it is clear that it is theaccused who caused injuries to the deceased as well as PW1.

There is no other reason to doubt the presence of PW1 at therelevant point of time of the incident. Further more PW1 is aninjured witness. Ordinarily courts should be loath to reject thetestimony of an injured witness. This is because injuries ensurethe presence of a witness. It is intrinsic norm of appreciation ofevidence that before the testimony of injured witness can beaccepted, it has to pass the test of truthfulness and should beconsonance with probabilities. PW11 is the Doctor who examined PW1, found the following external injuries:

1. Cut injury over the left ear pinna, 2.5 x .5 cms reddish incolour, simple in nature caused by sharp edged bluntweapon. Age of the injury is within six hours prior to theexamination.colour, simple in nature caused by sharp edged bluntweapon. Age of the injury is within six hours prior to theexamination.

2. An incised wound over the left ear 5 cm x 2.4 cm reddishin colour, simple in nature might have caused by sharpedged weapon, age of the injury is within 6 hours.in colour, simple in nature might have caused by sharpedged weapon, age of the injury is within 6 hours.

3. Laceration over the left side of the neck 2.5 cms 1.5 cmsreddish in colour, simple in nature might have caused withblunt weapon, age of the injury is within six hours.reddish in colour, simple in nature might have caused withblunt weapon, age of the injury is within six hours.

4. Cut injury over the left cheek 5 x 2.5 cms reddish in coloursimple in nature, might have caused by sharp edged bluntweapon, age of the injury is within 6 hours.simple in nature, might have caused by sharp edged bluntweapon, age of the injury is within 6 hours.

5. Cut injury over the left palm 5 x 2.5 cms reddish in coloursimple in nature, might have caused with sharp edgedblunt weapon, age of the injury is within 6 hours prior tothe examination.simple in nature, might have caused with sharp edgedblunt weapon, age of the injury is within 6 hours prior tothe examination.

He issued Ex.P11 wound certificate. He stated that injury No.1, 2,4 and 5 were possible by stabbing with a weapon like M.O.1 andinjury No.3 can be caused with a blunt object. Practically, theevidence of PW11 and the recitals in Ex.P11 remained un-challenged.

14. It is not the case of the accused that PW1 sustained thoseinjuries at a different place in a different manner at the hands ofdifferent persons. When it is shown that PW1 sustained thoseinjuries during the course of same transaction in which deceasedsustained injuries, the evidence of PW1 can be accepted.

Therefore, the evidence of PW1 can be put in the category ofwholly reliable, as he has no grouse or enmity against the accusedso as to implicate him falsely. The mistaken or false identity of theaccused can be ruled out because the incident has taken place ina broad daylight.

15. Further the evidence of PW1 is in support with the evidenceof PWs.3 and 5. Their evidence also would clearly go to show thatit is the accused who caused injuries to the deceased as well asPW1. PW4 who came to the scene of occurrence after coming toknow about the incident saw the deceased lying with injuries onthe neck and head. At that time, the accused was present with aknife in his hand and he was warning the persons present therenot to come near the injured. Thereafter, he saw the injuries on thebody of PW1.

16. PW2 who is said to be an eyewitness did not support thecase of the prosecution and was declared hostile by theprosecution. Still his evidence can be used to support the otherevidence provided that part of evidence inspires confidence. Hespecifically stated that by the time of coming to know about DhaniBai was beaten, he went near the house of accused and saw theaccused was present by holding a knife at the scene ofoccurrence. To that extent his evidence can be taken intoconsideration to support the case of prosecution.

17. PW6 was declared hostile by the prosecution. His evidenceto the extent that by the time he went there, the accused beat thedeceased with knife on her neck and caused bleeding injury andthen they all caught hold of the accused, can be taken intoconsideration.

18. Another circumstance the prosecution is relying upon is,arrest of the accused and recovery of M.O.1. PWs.8 and 10 arethe mediators for the arrest of the accused. Though PW8 declaredhostile, as he did not support the case of the prosecution, theInvestigating Officer has categorically stated that the accusedgave a confessional statement as in Ex.P6 (admissible portion). Inpursuance of that confessional statement, the accused led thepolice and mediators to his house and produced a knife M.O.1.The same was seized under Ex.P7 mediators report. When M.O.1was sent to the Forensic Science Laboratory, it contained humanblood as per Ex.P15 report. Therefore, this circumstance can alsobe taken into consideration to infer that the accused is theassailant of the deceased. Practically, the evidence of all theeyewitnesses remained unchallenged and they have no otherreason to implicate the accused falsely leaving the real assailants.So, the prosecution established its case beyond all reasonabledoubt to show that the accused is the assailant of the deceased.

19. Now, it has to be seen whether the case falls under Section84 IPC or not. Whenever the accused pleads a defence likeinsanity, the burden is on him to establish the same in view ofSection 105 of the Indian Evidence Act, 1872. The burden on theaccused shall stand discharged by showing preponderance ofprobabilities in favour of that plea on the basis of material onrecord. For discharging that burden, he need not come to thewitness box. He can also show by eliciting some material from theevidence of prosecution witnesses to show that he was sufferingfrom unsoundness of mind at the time of incident. There cannot beany dispute that the accused must show that he was sufferingfrom unsoundness of mind at the time of incident. Learned counsel for the appellant placed reliance on a decision reported in ELAVARASAN V. STATE REP. BY INSPECTOR OF POLICE[[1]], wherein it is held in paragraph No.15 as follows:

“15. A careful reading of the above would show that notonly is the burden to prove an exception cast upon theaccused but the Court shall presume the absence ofcircumstances which may bring his case within any ofthe general exceptions in the Indian Penal Code orwithin any special exception or provision contained inany part of the said Code or in law defining the offence.The following passage from the decision of this Court inDahyabhai Chhaganbhai Thakkar v. State of Gujarat,(1964) 7 SCR 361 may serve as a timely reminder of theprinciples governing burden of proof in cases where theaccused pleads an exception:

“The doctrine of burden of proof in the context of the pleaof insanity may be stated in the following propositions:

(1) The prosecution must prove beyond reasonable doubtthat the accused had committed the offence with therequisite mens rea, and the burden of proving thatalways rests on the prosecution from the beginning to theend of the trial.that the accused had committed the offence with therequisite mens rea, and the burden of proving thatalways rests on the prosecution from the beginning to theend of the trial.

(2) There is a rebuttable presumption that the accused wasnot insane, when he committed the crime, in the senselaid down by Section 84 of the Indian Penal Code: theaccused may rebut it by placing before the court all therelevant evidence oral, documentary or circumstantial,but the burden of proof upon him is no higher than thatrests upon a party to civil proceedings.not insane, when he committed the crime, in the senselaid down by Section 84 of the Indian Penal Code: theaccused may rebut it by placing before the court all therelevant evidence oral, documentary or circumstantial,but the burden of proof upon him is no higher than thatrests upon a party to civil proceedings.

(3) Even if the accused was not able to establishconclusively that he was insane at the time he committedthe offence, the evidence placed before the court by theaccused or by the prosecution may raise a reasonabledoubt in the mind of the court as regards one or more ofthe ingredients of the offence, including mens rea of theaccused and in that case the court would be entitled toacquit the accused on the ground that the general burdenof proof resting on the prosecution was not discharged”conclusively that he was insane at the time he committedthe offence, the evidence placed before the court by theaccused or by the prosecution may raise a reasonabledoubt in the mind of the court as regards one or more ofthe ingredients of the offence, including mens rea of theaccused and in that case the court would be entitled toacquit the accused on the ground that the general burdenof proof resting on the prosecution was not discharged”

20. The accused failed to fulfill his obligation to prove that hewas of unsoundness of mind at the time of committing offence byadducing cogent evidence. There is absolutely no evidence to

show that he was suffering with any unsoundness of mind at thetime of incident. So, in the absence of any proof of insanity, itwould be difficult to hold that the appellant was suffering with anyun-soundness of mind. When the charge was explained to theaccused, he stated that he might have done the offence becausehe was not mentally sound. Mere saying by the accused at thetime of charge that he was not mentally sound by itself cannot betaken as a circumstance to show that the accused was sufferingwith unsoundness of mind. It must be proved by cogent evidenceby preponderance of probability. Such evidence is lacking in thiscase. Therefore, the plea of insanity cannot be accepted.

21. Now it has to be seen whether the case falls under culpablehomicide amounting to murder or not. Necessary ingredients toconstitute the offence of murder, which is defined under Section300 IPC is as follows:

“300. Murder:-

Firstly Except in the cases hereinafter excepted,culpable homicide is murder, if the act by which thedeath is caused is done with the intention of causing or- Secondly- If it is done with intention of causing suchbodily injury as the offender knows to be likely to causethe death of the person to whom the harm is caused, or- Thirdly - If it is done with the intention of causing bodilyinjury to any person and the bodily intended to beinflicted is sufficient in the ordinary course of nature tocause death, or- Fourthly-If the person committing the act knows that itis so imminently dangerous that it must, in allprobability, cause death or such bodily injury as is likelyto cause death, and commits such act without anyexcuse for incurring the risk of causing death of suchinjury as aforesaid.”

There is absolutely no motive for the accused to commit themurder of the deceased. There are no prior disputes between the accused and the deceased. The accused was not armed with anyweapon at the time of the incident. While PW1 and the deceasedwere going, on seeing them the accused who was mentally upsetbrought one knife from his house and caused four injuries out ofwhich one proved to be fatal. Accused also caused simple injuriesto PW1. As the house of the accused is located near the scene ofoccurrence, he went there and brought the knife. Therefore in ourconsidered opinion the incident has taken place upon a suddenquarrel without any pre-meditation and the accused has not takenany un-due advantage and he was not ran away from the scene ofoccurrence.

22. Learned counsel for the appellant also placed reliance on adecision reported in VIJAYA KUMAR DHRUV V. STATE OF

CHHATTISGARH[[2]], wherein it is held in paragraph No.17 asfollows:

“In the present case, there was no previous enmitybetween the parties, there was no propriety for causingsuch injuries and after causing injury appellant has nottried to flee from the spot he was not holding any weaponand he has not caused repeated injuries but at the timeof causing injury, that too over the head by wooden stickappellant was having knowledge that by his act thedeceased may die. Therefore, the act attributed topresent appellant squarely falls within the ambit ofSection 304, Part I of the IPC and not under Section 302of the IPC.”

So, from the facts and circumstances of the case it can be saidthat the case falls under Section 304 Part-I IPC.

23. In the result, the conviction and sentence recorded by thePrincipal District and Sessions Judge, Medak at Sangareddyagainst the appellant/accused vide judgment, dated 08-07-2008, inSessions Case No.306 of 2007 for the offence punishable under

Section 302 IPC are set aside. However, the appellant/accused isfound guilty of the offence punishable under Section 304 Part-I IPCand accordingly, he is convicted and sentenced to undergorigorous imprisonment for ten (10) years. The period of remandunderwent by the appellant/accused during the course ofinvestigation, trial and after conviction shall be given set off underSection 428 Cr.P.C.

24. To the extent indicated above, the appeal is partly allowed.

25. Miscellaneous Petitions pending, if any, in this CriminalAppeal shall stand closed.

______________________

JUSTICE K.C. BHANU

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JUSTICE ANIS

December 30, 2013

PN

HON'BLE SRI JUSTICE K.C. BHANUANDHON’BLE MRS JUSTICE ANIS

CRIMINAL APPEAL No.513 of 2009

December 30, 2013

PN

[1]2011 (3) ALT (Crl.) 290 (SC)2011 (3) ALT (Crl.) 290 (SC)

[2]2013 CRL.L.J. 17862013 CRL.L.J. 1786