JUDGMENT
R.B. Dixit, J.
1. In a dogmatic society where old school of thought prevails, woman in her child-hood has to remain under control of her father, in married-life under control of her husband and in her old age under control of her sons. This is an unfortunate case, where it is alleged by the prosecution that on 24-8-1982 at village Khonkhar appellant who belongs to a community of Scheduled Caste was compelled to end her life by jumping in the village well, with a small female child in her lap, to commit suicide. However, the appellant was saved and survived, but the life of her female child was lost in the incident.
2. Chowkidar of the village Khonkhar, Thakuri (P.W. 3) lodged a report (Ex. P-1) at Police Station Kolaras informing that appellant Baijanti at about 3.00 p.m. jumped in the village well with her daughter Laxmi, aged about 12-13 days. However, the appellant was saved by her husband Nehnu (P.W 9). The female child could not be saved who died in the incident. When the appellant was questioned about the incident, she told villagers that she had attempted to commit suicide because of intolerable pain in her stomach from the time of her delivery. The Police registered the offence under Section 309/302 I.P.C. and in an inquest prepared the Panchnama (Ex. P-3) of the dead body. Dr. B.D. Sharma (P.W. 12) who performed post-mortem of the dead body of the girl child Laxmi (Ex. P-12) found swelling on eyes present, blood-stained froath coming out from nose and mouth. The cause of death was asphyxia due to drowning. Dr. B.D. Sharma had also examined the appellant (Ex. P-13) and found no external or internal injuries over her body. However, she was suspected to be an old case of Koch’s Abdomen _
C
Pul Tuberculosis.
2-A. The appellant had denied the charge and stated in her examination, recorded under Section 313 Cr.P.C. that while she was taken for treatment by her husband for her colic pain, however the paid was so severe that she fell unconscious on her way, in the well. The girl child in her lap, when she fell in the well, died in the incident.
3. The learned Additional Judge to Sessions Judge, Shivpuri in Sessions Trial No. 108/82 by the impugned judgment dated 22-3-1984 convicted the appellant for life imprisonment under Section 302, I.P.C. and three months’ simple imprisonment for offence under Section 309, I.P.C..
4. Feeling aggrieved against her conviction, the appellant has come up in appeal praying for quashing of her sentence and conviction on the ground that no charge has been proved beyond doubt on the basis of evidence adduced by the prosecution, against her.
5. Learned counsel of the appellant has taken us through the evidence produced by the prosecution.
6. Gillaiya (P.W. 2) had a chance to see appellant falling in the well with her girl child. He shouted to her husband, who immediately jumped in the well and pushed the appellant towards temporary mud steps of the well and witness Pillu (P.W. 1) gave her lift to come out of the well. However, body of girl child could not be traced.
7. Nehnu (P.W. 9) had stated that a day before this incident, appellant was treated by village doctor Naresh Singh for her colic pain. When he was informed by Gillaiya that his wife had fallen in the well, he immediately jumped to save her. Pillu assisted him by catching hairs of appellant and took her out of the well.
8. Pillu (P.W. 1) had denied the suggestion that appellant had attempted to commit suicide because of intolerable atrocities committed against her by her husband. Thakuri (P.W. 3) and Bhadai (P.W. 4) are other witnesses who reached the spot soon after the occurrence. They have admitted that the well was incomplete. Although, there was enough water in the well, but temporary steps of soil prepared for digging purpose, indicated that the well was in an incomplete position. Since there was no inner construction in the well, it caused difficulty in saving the life of girl child, whose dead body could Be searched only after arrival of police party.
9. Insofar as cause of death is concerned, witness Pillu (P.W. 1) had deposed that when her husband had pushed appellant for saving her life, she was insisting that she be left alone to die. According to Gillaiya (P.W. 2) nobody asked appellant as to how she fell in the well. However, witness Thakuri (P.W. 3) has admitted that he had asked the appellant as to what happened to her and she replied that she could not tolerate colic pain, and therefore, she fell alongwith her girl child.
10. Bhadai (P.W. 4) has further stated that the appellant had confessed regarding her child that although she attempted to commit suicide because of intolerable pain in stomach, however, she took her baby alongwith her with an idea that later on there would be none to look after her child.
11. In our opinion, this confessional statement on the part of appellant, further finds support from the evidence of her husband Nehnu (P.W. 9). In the circumstances, the learned trial Court has rightly come to the conclusion that the appellant had jumped in the well to commit suicide as well as to end the life of her girl child.
12. Learned counsel of the appellant has contended before us that where the learned trial Court had found that the appellant jumped in the well due to her intolerable pain, it failed to appreciate the fact that the act of the appellant was lacking any intention to cause death of her girl child. In the circumstances, the offence under Section 302, I.P.C. is not proved against the appellant. Reliance is placed on a decision of Bombay High Court in case of Supadi Lukadu v. Emperor (AIR 1925 Bombay 310) and further on a decision of Allahabad High Court in case of Emperor v. Mst. Dhirajia (AIR 1940 Allahabad 486).
13. In case of Supadi Lukadu (supra) where a girl of 17 years of age being tired of her husband’s ill-treatment attempted to commit suicide by jumping in a well with child on her neck and she jumped with the child and the child died of the jump though girl survived, the conviction under Section 302, I.P.C. was altered to one under Section 304A, I.P.C.. The Court was further pleased to reduce the sentence to six months simple imprisonment to run concurrently with the sentence under Section 309, I.P.C..
14. In case of Emperor v. Mst. Dhirajia (supra) where a young woman with her baby in her arms had jumped or fallen down in a well. It was observed that in order to possess and to form an intention there must be a capacity fore reason. And when by some extraneous force the capacity for reason has been ousted, the capacity to form an intention must have been unseated too. But knowledge stands upon a different footing. Some degree of knowledge must be attributed to every sane person. Obviously the degree of knowledge which any particular person can be assumed to possess must vary. The act done with knowledge of consequences is not prima facie a murder, it becomes murder only in absence of excuse. Ill-treated wife leaving home without knowledge of her husband and where husband following her, wife getting into panic and throwing herself with baby in her arms into an open well, the offence held to be culpable homicide not amounting to murder. It was further observed that the offence did not amount to attempt to commit suicide.
15. However, the learned trial Court has relied upon an earlier Division Bench decision of this Court in the erstwhile Madhya Bharat region in case of Gyarsibai v. The State (AIR 1953 M.B. 61), wherein after considering the implications arising out of the ratio of decisions of Bombay High Court in case of Supadi Lukadu (supra) and of Allahabad High Court in Emperor v. Mst. Dhirajia (supra), it was observed that where an act of the accused in jumping into the well with her children was clearly one done by her knowing that it must in all probability cause the death of her children, she had no excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between her and sister-in-law and that her life had become unbearable on account of this family discord could not be regarded as a valid justification.
16. The learned trial Court has also relied upon another Division Bench decision of this Court in case of Thagani Bai v. State of M.P. (1972 JLJ 604) wherein the accused appellant, wife of a rickshaw-puller who used to ill-treat her, jumped into the well with her two sons. It was observed that under the 4th clause of Section 300 of the Indian Penal Code, culpable homicide is murder if the person committing the act knows that it is so imminently dangerous that it must in all probability, cause death, or such bodily injury as it likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such bodily injury as is likely to cause death. In the circumstances, the constant ill-treatment to which the accused appellant was subjected at the hands of her husband could not furnish such an excuse.
17. However, in our considered opinion the cases of Gyarsibai and Thagani Bed, referred hereinabove, are distinguishable from the present case in view of the fact that ill-treatment by the husband in the present case, has not been proved. What is proved is intolerable pain of stomach. Another distinguishable feature in the present case is that the position of well was not so dangerous as it was in the process of being built.
18. The question that arose for consideration in all previous decisions on this point, referred hereinabove was whether ill-treatment by the husband to the wife can furnish an excuse on the point of intention to cause death of a small child. In the present case, the girl child was of hardly 10-12 days and the fate of survival of the girl-child was completely dependant on survival of the mother. If the mother had decided to end her life due to intolerable pain, it may be taken to be a cause to commit suicide. The ingredients of murder i.e., causing death knowingly and intentionally is found lacking in the present case.
19. Hon’ble the Supreme Court in its recent decision in case of State of H.P. v. Lekh Raj, (2000) 1 SCC 247, has expressed view that the criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the Court of its responsibility of shifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case. The social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life.
20. Taking into consideration the views expressed by the Apex Court in case of State of H.P. (supra), the evidence has to be examined regarding the mental condition of the accused-appellant at the time of the incident.
21. According to witness Gillaiya (P.W. 2) it was raining heavily at the time of incident. In the portion marked ‘B’ to ‘B’ of his police case diary statement (Ex. D-2) he was also informed by appellant about her colic pain. Thakuri (P.W. 3) has also admitted that the husband of appellant assisted in prolong treatment of appellant. Bhadai (P.W. 4) was told by appellant soon after the incident that colic pain was so intolerable and she was so much worried about her girl child that she decided to take the girl-child with her while jumping into the well. Dr. B.D. Sharma (P.W. 12) who had examined the appellant found her suffering from Koch’s Abdomen _
C
Pul. Tuberculosis.
22. Learned counsel of the appellant has urged that although no specific plea of insanity was raised during trial by appellant, however, in her statement recorded under Section 313, Cr.P.C. she had categorically stated that when her husband was taking her for the purpose of treatment and when she passed on her way to the well she suddenly fainted and stumbled into the well. In the circumstances, when medically it is proved that it was a case of Koch’s Abdomen c Pul Tuberculosis, the statement of appellant that she suddenly lost balance of mind and fell into the well cannot be easily brushed aside.
23. In a decision of Apex Court rendered in case of Jai Lal v. Delhi Administration (AIR 1969 SC 15) it was pointed out that in order to establish that the acts done are not offence under Section 84, I.P.C., it must be proved clearly that at the time of the commission of the act the appellant by reason of unsoundness of mind was incapable of either knowing that the acts were either morally wrong or contrary to law. The question is whether the appellant was suffering from such incapacity at the time of commission of the acts. The state of mind before and after the crucial time is relevant. If a person 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, he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled to an acquittal. The general burden is on the prosecution to prove beyond reasonable doubt not only the actus reus but also the mens rea.
24. In a DB decision of Bombay High Court in case of Phulabai v. State of Maharashtra (1976 Cr.L.J. 1519), although there was no evidence as to how exactly the accused who was suffering from chronic and incurable illness fell into the well at midnight alongwith her child aged 11/2 years. The child was also suffering from rickets prior to its death. It was observed that it may be possible to hold that the accused attempted to commit suicide by jumping alongwith her child. However, in absence of any evidence clearly indicating as to exactly how they fell into the well, it would be wrong to play on the imagination and hold the accused guilty under Section 309 or 302, I.P.C. and exclude the operation of Section 84, I.P.C.. Although the burden of proof of the defence under Section 84 is on the accused, that burden is not as heavy on the accused as on the prosecution. The absence of medical evidence does not justify exclusion of common sense.
25. So far as the case in hand is concerned, it is well established from the evidence on record that the appellant was in full sense when she was brought out of the well and had narrated to the witnesses the reason of her jumping into the well alongwith her girl child. In the circumstances, although the plea of insanity was not raised, however, it is not a fit case which can be covered for the purposes of plea of insanity available under Section 84 of I.P.C..
26. We are of the considered opinion that appellant had been suffering from colic pain right from the time of her delivery and even after her prolong treatment by village doctor she could get no relief from griping pain of belly. It has further to be kept in mind that appellant belongs to a Dalit community and of impoverish condition. Her husband could not have afforded costly treatment by taking her to any city hospital. Her determination to end her life was not without cause. Her thinking that as there is none in the family to look after her newly born child has also to be appreciated in prevailing socio-economic conditions around her. Taking into consideration the old illness of tuberculosis coupled with severe and continuous stomach pain, general mental condition of the appellant was not normal, otherwise, she would not have decided to carry on and die with her newly born baby. The peculiar facts and circumstances of this case are quite distinguishable from earlier decisions of this Court in cases of Gyarsi Bai and Thagni Bai (supra).
27. The intention of appellant in causing death of her newly born child has to be judged from the circumstances which we have stated hereinabove. It cannot be imagined that appellant wanted to murder her child. Her mental condition indicates that at the time of incident, she was gripped with an idea to end her life and also to end the life of new newly born baby so that she may not be starved to death without her mother. In our opinion, obviously the degree of knowledge under such circumstances is not prima facie a murder, but culpable homicide not amounting to murder. The offence of appellant is, therefore, falls under the category of offence punishable under Section 304 Part II I.P.C.. The offence under Section 309, I.P.C. is also found proved against the appellant.
28. The offence under Section 304 Part II I.P.C. is punishable both with imprisonment as well as with fine. In our opinion, therefore, taking into consideration the agony and sufferings of long drawn trial as well as pendency of this appeal covering period of about 18 years, and social and poor economic condition of appellant, it would not be justified to award further punishment then the period already undergone.
29. For the reasons discussed hereinabove, the appeal is partly allowed and the sentence and conviction of appellant under Section 302, I.P.C. is converted under Section 304 Part II I.P.C. and sentenced to the period of imprisonment already undergone by her. Insofar as conviction of the appellant under Section 309, I.P.C. is concerned, it is maintained. However, the sentence already undergone by her will also apply concurrently insofar as her offence under Section 309, I.P.C. is concerned.