JUDGMENT
Lokeshwar Singh Panta, J.
1. Bihari Lal-appellant (hereinafter referred to the ‘accused’) has challenged the judgment and order dated 6-6-2002 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No. 15 of 2001 convicting him under Section 302 of the Indian Penal Code 1860 (for short the ‘I.P.C.’) for the murder of his wife Smt. Sewa Dassi and Naresh Kumar son about four years of age and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to suffer simple imprisonment for further period of two years.
2. The prosecution case against the accused was that the accused married Smt. Sewa Dassi some time in the year 1990. Two sons, namely, Ram Sawarup and Naresh Kumar were born to them. In the month of January/February, 2000 the accused started treating his wife Smt. Sewa Dassi with cruelty as he suspected that her moral character was not good. Smt. Sewa Dassi left the house of the accused and stayed in the house of her brother Mangal Singh (PW-13) for about one month. On 7-2-2000 Kamla Nand (PW-10) cousin brother of Smt. Sewa Dassi who was working as lineman in H. P. State Electricity Board in village Sarahan, District Kinnaur accompanied Smt. Sewa Dassi to the house of the accused. Smt. Uchhi Devi mother of the accused has been residing in a separate room from the accused along with Ram Sawarup elder son of the accused. The accused along with his wife Smt. Sewa Dassi and Naresh Kumar younger son were residing in separate room of the house. The kitchen of the accused was at a distance of about 25 feet from his living room. Smt. Sewa Dassi and her son Naresh Kumar used to sleep in the said kitchen. It was on 26/27-10-2000 that Diwali festival was being celebrated in the village of the accused. On 27-10-2000 at about 6 a.m. Smt. Uchhi Devi went to the room of the accused and found its door bolted from outside. She looked for the accused and his wife but they were not found nearby their house. She found the door of the kitchen also bolted from outside. Smt. Uchhi Devi then asked her grand-son Ram Sawarup to make search for his parents. Ram Sawarup managed to open the door of the kitchen and found his mother Smt. Sewa Dassi and brother Naresh Kumar lying dead there. He informed his grand-mother who immediately went to the kitchen of the accused and found her daughter-in-law and her grand-son lying dead there. Smt. Uchhi Devi cried loudly in despair. On hearing her cries, Roop Singh (PW-1) brother of Smt. Uchhi Devi whose house is located at a distance of about 100 meters from the house of the accused in the same village rushed to the house of the accused. Some other villagers including Gopal Singh (PW-6) and Amar Singh (PW-11) reached at the house of the accused. PW-1 called Sohan Lal (PW-2), Pradhan Gram Panchayat, Gauri Prasad, Member, Gram Panchayat who too reached there. Bhag Ram (PW-15) Ex-Pradhan of Gram Panchayat telephonically informed the Incharge of Police Station, Zhakri, District Shimla about the occurrence. Telephonic information was reduced into writing in daily diary (Ext. PW-17/A) by Inspector Hukam Singh (PW-21) who was posted as Station House Officer at Police Station Zhakri, Tehsil Rampur Bushahr, District Shimla at the relevant time. PW-21 along with constables Gulab Singh and Suresh Kumar proceeded to the place of occurrence for verification of the correctness and genuineness of the information given by PW-15 Bhag Ram.
3. The further case of the prosecution was that Smt. Uchhi Devi mother of the accused informed PW-1, PW-2, PW-6, PW-11 and other persons of the village who gathered at the house of the accused that he had committed the murder of his wife and son. PW-11, Phula Singh, Padam Singh and some other persons of the village were deputed to trace out the accused in and around the nearby area of the village. The accused was found hiding himself in bushes in the ‘Ghasni’ (grass land) near the village. Padam Singh, Phula Singh and PW-11 apprehended the accused and took him to his house in village Chhuara Bai. The accused made extra-judicial confession to PW-1, PW-2 Pradhan, PW-6, J.B. T. Teacher, PW-10 Kamla Nand cousin brother of deceased Smt. Sewa Dass, PW-11 and PW-13 Mangal Singh younger brother of deceased Smt. Sewa Dassi in the presence of other village people that he had strangulated his wife and son as his wife was not of good moral character. PW-21 the Investigating Officer along with other police officials reached at the scene of the occurrence where he found large number of persons present outside the house of the accused. The accused was chained with a rope in his courtyard by the village people. He found the dead bodies of Smt. Sewa Dassi and Naresh Kumar lying in the kitchen. He recorded the statement of PW-1 under Section 154, Cr. P.C. (Ext. PW-1/A) (re-exhibited as PW-21/A) which was forwarded to the Police Station, Zhakari for registration of the formal First Information Report. ASI Keshav Singh (PW-18) registered F. I. R. (Ext. PW-18/A) on 26-7-2000. Photographs of the dead bodies of both the deceased Exts. PW-16/A-l to PW-16/A-5 were taken by Constable Bharat Bhushan (PW-16). PW-21 noticed a mark of blood on the left foot of Smt. Sewal Dassi which was lifted vide recovery memo Ext. PW-2/A. The accused was arrested. He made disclosure statement Ext. PW-2/B in the presence of PW-2 and Gauri Prasad (not examined) to the effect that he could get the rope recovered with which he committed the murder of his wife and child by strangulation. The disclosure statement was attested by the witnesses and Investigation Officer. Pursuant to the disclosure statement, the accused led the witnesses and police to the Verandah of his house and taken out a rope (Ext. P-l) from a hole of the wall of the Verandah. The rope was taken into possession vide recovery memo (Ext. P-2/C) and sealed with seal impression ‘X’. PW-21 submitted two applications, copies whereof are placed on record as Exts. PW-12/F and PW-12/G to the Medical Officer, MGMS, Khaneri for post mortem examination of the dead bodies of the deceased. The Inquest Reports Ext. PW-21/D and Ext. PW-21/E were prepared and sent to the Medical Officer along with applications. Rope (Ext. P-l) was also sent to the Medical Officer for his opinion to find out whether the said rope could cause the death of the deceased persons by strangulation. The accused was also got examined from the Medical Officer. The specimen hand writing Exts. PW-4/A to PW-4/10 were taken by Shri Padam Singh (PW-9) Sub-Divisional Magistrate. Rampur Bushahr. Om Parkash (PW-5) who at the relevant time was working as Patwari, Patwar Circle Kinu prepared Jamabandi (Ext. PW-5/A) of Khasra No. 556 of revenue estate Bajwa and field map (Ext. PW-5/B). Drawing (Ext. PW-14/A) of the house of the accused and kitchen was got prepared from Shri Partap Singh (PW-14) Surveyor, H.P. Public Works Department, Sub-Division No. 1, Rampur Bushahr.
4. On completion of the investigation and receipt of the post mortem reports (Exts. PW-12/A and PW-12/B), medico legal certificate of the accused (Ext. PW-12/D) and report of the Assistant Director, State Forensic Science Laboratory (Ext. PX), PW-21 prepared the chargesheet and sent the accused for trial. He pleaded not guilty to the charge and claimed trial.
5. In order to bring home the accusations against the accused, the prosecution examined 21 witnesses. The accused in his statement recorded under Section 313, Cr. P.C. pleaded that he has not committed the murder of his wife and child and claimed innocence. In answer to question No. 20 he stated that he wanted to die. The accused examined Dr. Virendra Mohan a private practitioner in his defence to prove that he was suffering from paranoid schizophrenia.
6. The trial Court found the evidence of the prosecution witnesses cogent and reliable. Placing reliance on the evidence of PWs. 1, 2, 6, 10, 11,PW-12 Dr. Ganga Rawat and PW-13, the trial Court found the accused guilty of the murder of his wife Smt. Sewa Dassi and son Naresh Kumar and accordingly convicted and sentenced him as aforesaid.
7. Feeling aggrieved by the conviction and sentence imposed upon the accused, the accused has preferred this appeal from Model Central Jail, Nahan. This Court appointed Mr. Tarlok Chauhan (Advocate) Amicus Curiae to represent the accused.
8. We have heard Mr. Tarlok Chauhan, Advocate for the accused and Mr. S. D. Vasudeva. learned Additional Advocate General for the State and duly examined both oral and documentary evidence coming on the record. Mr. Chauhan, learned Counsel has made four fold submissions, namely, (i) that there are contradictions regarding the time of the incident appearing in the evidence of the prosecution witnesses; (ii) the motive for the murder of Smt. Sewa Dassi and Naersh Kumar attributed to the accused is not established by the prosecution by leading reliable and trustworthy evidence; (iii) extra-judicial confession relied upon by the prosecution is not proved having been made voluntarily by the accused to the witnesses and (iv) that the accused was a person of unsound mind and he was not in a position to know or realize the nature of the acts which he was committing and as such the accused is entitled to benefit of Section 84, I.P.C.
9. In response, the learned Additional Advocate General for the State supported the judgment of the learned trial Court and further submitted that in view of the analysis made and nature of the crime committed by the accused, no interference is called for.
10. In order to appreciate the rival contentions of the learned Counsel for the parties, we propose to re-appraise and scrutinize the evidence appearing on record.
11. PW-1 the maternal uncle of the accused is a resident of the same village to which the accused belongs. He heard the cries of his sister Smt. Uchhi Devi (not examined) the mother of the accused on the day of the occurrence i.e. 27-10-2000 at about 6.30 a.m. He immediately rushed to the house of his sister. He was informed by Smt. Uchhi Devi that the accused had committed the murder of his wife Smt. Sewa Dassi and younger son Naresh Kumar. The accused was not found present in his house by this witness. He entered the kitchen of the house of the accused and found dead bodies of Smt. Sewa Dassi and Naresh Kumar there lying on the ground. He noticed blue marks of strangulation caused with a rope around the respective neck and throat of Smt. Sewa Dassi as well as her son Naresh Kumar. Some people of the village also reached at the place of the occurrence who made search for the accused. This witness stated that the accused was brought to his house by some villagers at about 8.30 a.m. The police was also informed by some person of the village. On arrival of the police, his statement (Ext. PW-1/A) under Section 154, Cr. P.C. was recorded by PW-21 the Investigating Officer. PW-2 Sohan Lal, Pradhan of the Gram Panchayat, Mashnu reached at the place of occurrence at about 7 a.m. when he was informed by Jai Singh a co-villager that the accused had committed the murder of his wife and child. He examined the dead bodies of the deceased persons in the kitchen. The accused was not found present there. He stated that PW-1 was already present at the house of the accused when he reached there. The accused was apprehended by the village people at some other place outside the village. It has come in the cross-examination of this witness that he had reached the house of the accused at about 9 a.m. but at that time the accused was not present in his house. It is in his evidence that the police reached at the house of the accused on the day of the occurrence at about 11 a.m. PW-6 a co-villager of the accused is working as J. B. T. Teacher in Govt. Primary School, Kinnu. As per his version on 27-10-2000 at about 7 a.m. he heard Smt. Uchhi Devi mother of the accused crying in despair. It was Diwali holiday on that day. He entered the kitchen of the house of the accused and found dead bodies of Smt. Sewa Dassi and her son lying on the ground there. On visual inspection of the dead bodies of the deceased persons, he noticed blue marks of strangulation around their respective neck.
12. PW-7 Sarojani Devi was a student of 8th class of Govt. Middle School, Mashnu at the time of the incident. The accused is real brother of her mother (maternal uncle of the witness). She and the accused are the residents of the same village. She stated that on 27-10-2000 the accused came to her house at about 7 a.m. and demanded one blank paper and pen from her. She obliged the accused. The accused subscribed document (Ext. PW-3/A) in her presence on her note book and handed over the said document to her to be delivered at his house. The evidence of this witness is that the accused had left her house towards the forest side and told her that no one should carry out search of him. She handed over the document (Ext. PW-3/A) to PW-6. On the day of the incident PW-10 the cousin brother of deceased Smt. Sewa Dassi rushed to the house of the accused after receiving the information that the accused had committed the murder of his wife and son. PW-11a co-villager of the accused also reached at the scene of the occurrence at about 6.30 a.m., when he too heard Smt. Uchhi Devi mother of the accused crying in despair. He entered the kitchen of the house of the accused and found Smt. Sewa Dassi and her son lying dead on the ground. He deposed that many villagers gathered at the house of the accused. He along with Phula Singh, Padam Singh and other persons of the village were deputed by elder members of the village to make search for the accused in the nearby area. They found the accused hiding himself in bushes in the ‘Ghasani’ near the village. The accused was holding a quilt cover and one bottle of water. They brought the accused to his house where PW-1, PW-2 and Gauri Parsad, Member, Gram Panchayat along with other village people were present. This witness also stated that the police reached at the house of the accused on the day of the occurrence at about 11 a.m. PW-13 the younger brother of deceased Smt. Sewa Dassi was also informed at about 8 a.m. about the murder of his sister and her younger son when he was in his house in village Kinnu. He immediately rushed to the house of the accused and found his sister and her younger son lying dead in kitchen with marks of ligature around their respective neck. The accused was brought to his house by some boys of the village after he reached at the scene of the occurrence. PW-15 Bhag Ram Ex.-Pradhan was informed by Prabhu Lal, Patwari who met him in the bus on 27-10-2000 that the accused committed the murder of his wife and child by strangulation and he was requested to pass on information to the police. He telephonically informed Police Station, Zhakari from village Gaura about the incident. PW-21 Inpector/Station House Officer recorded the telephonic information of PW-15 in daily diary report (Ext. PW-17/A) at about 8 a.m. and thereafter he along with Constables Gulab Singh and Suresh Kumar left for the place of occurrence to verify the correctness of the facts reported by PW-15. PW-21 reached at the place of the occurrence along with other police officials which is at a distance of about 80 kms. from Police Station, Zhakari. It took about three hours to the Investigating Officer to cover the distance to reach the place of occurrence from the Police Station. He recorded the statement of PW-1 under Section 154, Cr. P.C. (Ext. PW-1 /A) and forwarded the same to the Police Station for registration of the case at about 11.30 a.m. On the basis of Ext. PW-1/A. F. I. R. (Ext. PW-18/A) came to be recorded by ASI Keshav Singh PW-18 on the same day at about 3.15 p.m. in Police Station, Zhakari. The evidence appearing on the record shows that the dead bodies of Smt. Sewa Dassi and her son Naresh Kumar were noticed by Smt. Uchhi Devi and her grandson Ram Sawarup in the kitchen of the accused at about 6.30 a.m. on 27-10-2000. The other witnesses also gathered at the scene of the occurrence on hearing the cries of Smt. Uchhi Devi. The accused went to the house of his sister residing in the same village at about 7 a.m. where he demanded one blank paper and pen from PW-7 the daughter of his sister for writing a document (Ext. PW-3/A). Thereafter the accused fled towards the forest side. PW-11 and other co-villagers, namely, Phula Singh and Padam Singh etc. found the accused hiding himself under the cover of bushes in the ‘Ghasani’ near the village. He was apprehended and brought to his house by those persons and was tied to a pole to hand over him to the Police. The police party reached at the house of the accused at about 11 a.m. and arrest him. The presence of the accused in the house of PW-7 was not known to his mother Smt. Uchhi Devi or any other person of the village, therefore, the contentions of the learned Counsel for the accused that the accused could have been apprehended by the village people at about 7 a.m. in the house of PW-7 cannot be accepted. We find no material variation or contradiction regarding the time when the dead bodies were noticed by Smt. Uchhi Devi mother of the accused and his elder son Ram Sawarup in the kitchen. The post mortem examination of the dead bodies of Smt. Sewa Dassi and Naresh Kumar was conducted by PW-12 Dr. Ganga Rawat, Medical Officer, M.G.M.S.C. Khaneri on 28-10-2000.
13. In the opinion of the doctor the death of Smt. Sewa Dassi and her son Naresh Kumar was due to asphyxia. caused by compression of their necks as evidenced by the ligature marks found thereon. Probable time that elapsed between injuries and deaths was probably instantaneous and the probable time that elapsed between deaths and post mortem was within 36 hours. Dr. Rawat placed on record post mortem reports (Exts. PW-12/A and PW-12/B). On examination of rope (Ext. P.-1) Dr. Rawat opined that the death of Smt. Sewa Dassi and her son Naresh Kumar could be caused by the said rope used for strangulation. The accused was also examined by the doctor on 28-10-2000 at 2 p.m. and following injuries were found on his person:
1. Cut incised wound with surrounding bruise (contusion) bluish black in colour over middle finger, ventral aspect of right hand. Dark, red, brownish scab over wound present.
2. Abrasions with dark reddish brown scab over it in cluster over dorsum of right hand. 7 in number varying in size. Biggest measuring curved 1.5 c.m. x 0.5 c.m. and smallest 0.3 x 3 c.m. circular. All abrasions in area extending lateral to thumb to mid of dorsum of hand and its, 2nd and 3rd metacarpal. No bony injury.
3. Linear abrasion 1 cm. with dark reddish brown scab over it just below nail of left middle finger. No bony injury.
4. Curved abrasion with dark reddish brown scab over middle phalanx of left index finger measuring 8 mm. No bony injury.
5. Abrasion dark red over 1 inch above right end of mouth (angel of mouth).
14. According to the opinion of the doctor injury No. 1 was caused with sharp edged weapon and other injuries with blunt weapon on the person of the accused. Probable duration of injury No. 1 was within six days whereas the other injuries were caused within duration of 2 to 3 days. It has come in the evidence of Dr. Rawat that injuries Nos. 2, 3, 4 and 5 on the person of the accused could have been caused as a result of application of nails. Dr. Rawat has admitted in the cross-examination of the defence that if the accused had been chained and tied against a wooden pole forcibly and violence is caused to him, injuries Nos. 2 to 5 could have been caused to him whereas injury No. 1 could be caused accidentally as well. A suggestion of the defence that the cause of the death of Smt. Sewa Dassi and her child Naresh Kumar was by hanging, has been categorically denied by Dr. Rawat. It is the clear opinion of the doctor that the cause of death of Smt. Sewa Dassi and her son Naresh Kumar was by strangulation. The evidence of the witnesses discussed above corroborated by the medical evidence of Dr. Rawat clearly proves that Smt. Sewa Dassi the wife of the accused and his son Naresh Kumar had died due to strangulation with the aid and use of rope Ext. P-1. In the circumstances the first contention of the learned Counsel for the accused does not find merit.
15. PW-1, PW-2, PW-8, PW-10 and PW-11 deposed that the accused told them that his wife not possessing good moral character and Naresh Kumar was not his son. PW-10 cousin brother of deceased Smt. Sewa Dassi and PW-13 her real brother deposed that the accused had been treating his wife with cruelty and accusing her with infidelity. Deceased Smt. Sewa Dassi came to the house of PW-13 in the month of January, 2000 and stayed there for about one month when she was sent back by him in the company of her cousin brother PW-10 to the house of the accused to look after and take care of her two small sons, namely, Ram Sawarup and Naresh Kumar. The evidence of these witnesses is cogent, reliable and trustworthy to prove that the accused was treating his wife with cruelty before her death as he was suspecting that her moral character was not good. The defence has not challenged or shattered the evidence of the witnesses to establish that the accused was not maltreating his wife before her death. PW-1, PW-10 and PW-13 are the close relatives of the accused who have deposed against him. PW-2 is the Pradhan of the Gram Panchayat, PW-6 is a J. B. T. Teacher, PW-8 and PW-11 are the co-villagers of the accused. They have stated in clear words that the accused proclaimed that his wife was a woman of ill-repute and had been carrying on with other person. It has come in the evidence of PW-8 that his house is situated at a distance of about 100 mtrs. from the house of the accused and he saw the accused picking quarrel with his wife. PW-8 said that the accused is the son of the sister of his father. The contention of Mr. Chauhan that the evidence of the witnesses in regard to the strained relations of the accused with his wife is not conclusive proof to hold that the accused had been maltreating his wife before her death as no complaint was ever made by the deceased to the Police or Panchayat cannot be accepted by us. There is not an iota of evidence on record to prove that the close relatives of the accused and other persons of the village who are the material witnesses have falsely deposed against him. Even Smt. Uchhi Devi mother of the accused clearly told to all the witnesses and other persons of the village gathered at the house of the accused on the day of the occurrence that it was the accused who committed murder of his wife and son in the kitchen of his house though she was not examined by the prosecution as witness in the present case as she was found having been won over by the accused as per the statement of the Public Prosecutor made before the trial Court on 6-4-2002. The circumstance of the motive may not be by itself the sole ground to prove the case against the accused but cumulative effect of all the circumstances appearing on record against the accused would lead to the conclusion that the accused was the culprit of the crime as the motive was only known to his mind which can be inferred from the circumstances of the case in hand. The second contention of the learned Counsel cannot be sustained.
16. The third contention of the learned Counsel for the accused that extra judicial confession relied upon by the prosecution and accepted by the learned trial Court is very weak of evidence therefore, no reliance can be placed upon it to connect the accused with the commission of the offence. In the instant case extra judicial confession made by the accused has been sought to be proved by the testimony of PWs. 1, 2, 3, 6, 10, 11 and 13. As noticed earlier, all the aforesaid witnesses are either closely related to the accused. Pradhan of the Panchayat and co-villagers of the accused in whom, under the normal circumstances, he would have confided hoping help, protection and being safeguarded. The confession has been made instantaneously immediately after the accused was brought to his house by PW-11. Phula Singh, Padam Singh and Yogesh (not examined) from ‘Ghasni’ nearby the village where he remained hiding himself under the cover of the bushes. As noticed above, PW-1 the real maternal uncle of the accused, PW-2 the Pradhan of the Gram Panchayat, PW-6 a J. B. T. Teacher, PW-10 the cousin brother of deceased Smt. Sewa Dassi, PW-11 a co-villager of the accused and PW-13 younger brother of the wife of the accused are all consistent In their deposition that when the accused was brought to his house from the jungle, he voluntarily made extra judicial confession that he committed the murder of his wife and son. There is no suggestion to these witnesses which could tend to show that their evidence is tainted and that the extra judicial confession was not voluntarily made by the accused. The Hon’ble Supreme Court in Gura Singh v. The State of Rajasthan 2001 (1) Crimes 34 : 2001 Cri LJ 487 (SC) observed that extra judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. In the present case, the accused after committing the crime left his house and went to the house of his sister residing in the same village. He demanded a piece of blank paper and pen from PW-7 daughter of his sister and scribed document (Ext. PW-3/A) and thereafter fled towards the forest telling PW-7 not to carry out any search for him. We have examined document (Ext. PW-3/A). We find that the contents of the said document are meaningless and irrelevant to understand the relevant context and meaning thereof. The production of the document (Ext. PW-3/A) is not relevant for deriving of any help in favour of the prosecution and against the accused. The extra-judicial confession was made by the accused to the witnesses before the arrival of the police at the spot. The accused in answer to question No. 20 has admitted that he still wanted to die. Question No. 11 put to the accused in his statement under Section 313, Cr. P.C. reads as under:
Q. 11. There is in evidence that you had been present at your house on the night intervening 26-10-2000 and 27-10-2000. In the morning on 27-10-2000 your mother Smt. Ochhi Devi looked for you but you were nowhere to be found. What have you to say about it?
Ans. It is correct.
17. Thus, the evidence of the relative witnesses and other witnesses of the village noticed hereinabove would prove conclusively that the accused made extra judicial confession to them without any undue influence, coercion or presser. The accused made disclosure statement (Ext. PW-2/B) in the presence of PW-2 Pradhan of the Gram Panchayat and one Gauri Prasad, Member of the Gram Panchayat that he could get rope recovered used by him in the commission of the crime. The accused took PW-2 and Gauri Prasad to the Verandah of his house and pursuant to the disclosure statement he produced rope (Ext. P-l) from the hole of the wall of the Verandah. Dr. Rawat opined that ligature marks found on the neck of deceased Smt. Sewa Dassi and deceased Naresh Kumar could be caused by rope (Ext. P-l) which was sent to him by the Investigating Officer for giving the definite opinion to that extent. Extra-judicial confession, conduct of the accused and the recovery of the rope (Ext. P-1) in our view are the circumstances sufficient to connect the accused for the commission of the crime. In Balu Ram v. State of Rajasthan their Lordships held in the facts and circumstances of that case that extra-judicial confession made by the accused to his uncle and other villagers that he had quarrel with the deceased, had given a lathi blow on head of the deceased and locked him in a room. F. I. R. lodged by the uncle of the deceased, the injuries caused by lathi blow on head and other parts of the body have been spectfically mentioned, the nature of the injuries stated to have been disclosed in confession, corroborated by medical evidence are sufficient to hold the accused guilty of the offence on the basis of extra judicial confession. The learned Counsel for the accused in support of the plea of insanity of the accused placed reliance on the testimony of DW-1 Dr. Virendra Mohan to contend that the accused was under medical treatment of Dr. Virendra Mohan as he was suffering from paranoid schizophrenia and he was not in a position to know or realize the nature of the acts which he was committing and as such the accused is entitled to the benefit of Section 84, I.P.C. Before we deal with the evidence of Dr. Virendra Mohan, we feel it expedient to refer to the relevant provisions contained in Chapter IV of the Indian Penal Code, which deals with “General Exceptions” Section 84, I.P.C. provides as under:
84. Act of a person of unsound mind – 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.
18. Section 105, Evidence Act, 1872, which deals with the burden of proving the existence of circumstances bringing the case within any of the exceptions specified in the Indian Penal Code, provides-
105. Burden of proving that case of accused comes within exceptions – When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances
Illustration (a) to the above section reads:
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.
19. Reading the above extracted provisions of law, it is well settled that having regard to the provisions contained in Section 105, Evidence Act, 1872, every person who has attained the age of discretion is presumed to be sane and as such liable for the acts constituting a criminal offence if done with the requisite knowledge or mens rea and if such person, accused of an offence, wants to avoid his culpability by bringing his case within any of the provisions contained in Chapter-IV of the Indian Penal Code with regard to the “general exceptions”, the burden lies upon him to prove that he was entitled to the benefit in this regard under a particular provision.
20. Dealing with Section 84, Indian Penal Code, the Hon’ble Supreme Court in State of M.P. v. Ahmadulla , has observed that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by Section 84 lies on the accused who claims the benefit of this exemption.
21. Dahyabhai Chhaganbhai Thakkar v. State of Gujarat , the Hon’ble Supreme Court has held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.
22. The above principle was reiterated and followed by the Supreme Court in Bhikari v. State of U.P. and Oyami Ayatu v. The State of Madhya Pradesh .
23. In Jai Lal v. Delhi Administration , it was held:
To establish that the acts done are not offences under Section 84, 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 the commission of the acts. On this question, the state of his 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 Tacks the requisite mens rea and is entitled to an acquittal.
24. The above principle was reiterated in Vijayee Singh v. State of U.P. . Further dealing with Section 105, Evidence Act, 1872 and the nature of “burden of proof” placed on the accused, it has been held:
The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of law in respect of assessing the evidence in criminal cases. Section 105 places ‘burden of proof on the accused In the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the ‘burden of proof and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. Moreso when there are circumstances on the record (gathered from the prosecution evidence. Chief and cross-examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.
25. The above principle of law as laid down by the apex Court was followed by this Court in Diwan Chand v. State of Himachal Pradesh 2000 (2) Shim LC 112; Bal Bahadur v. State of H.P. 2001 (3) Crimes 108 and Hardayal Singh v. State of H.P., 2003 (2) SLC 371.
26. The Hon’ble Supreme Court in T. N. Lakshmaiah v. State of Karnataka has observed that Section 84, I.P.C. forms part of Chapter IV dealing with general exceptions. The principle embodied in the Chapter is based upon the maxim actus non facit reum, nisit mens sit rea i.e. an act is not criminal unless there is criminal intent. Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. More ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case. The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by Section 84, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. Similar view has been taken by their Lordships of the Supreme Court in Shrikant Anandrao Bhosale v. State of Maharashtra 2003 SCC (Cri) 144 : 2002 Cri LJ 4356.
27. Under the law, the crucial point of time for ascertaining the state of mind of the, accused is the time when the offence was committed. The question whether the accused was in such state of mind as to be entitled to the benefit of Section 84 Indian Penal Code, can only be established and determined from the circumstances which preceded, attended and followed the crime. In the light of the well settled principles of law laid down by the Hon’ble Supreme Court in the abovesaid judgments, we have examined the evidence of Dr. Virendera Mohan to consider the plea of insanity pleaded by the accused by putting suggestion to the prosecution witnesses. The accused has not pleaded the defence of exceptions under Section 84, I.P.C. in the statement recorded under Section 313, Cr. P.C. The prosecution witnesses have denied the suggestion of the defence that on 27-10-2000 when the accused was brought to his house by the villagers he was incapable of understanding anything. The suggestion of the defence to some of the prosecution witnesses that the wife of the accused and his son were murdered by Gorkha labourer who was engaged by Smt. Sewa Dassi when she failed to pay the wages of that Gorkha was emphatically denied by them. The accused had not taken such plea in his statement recorded under Section 313, Cr. P.C. Dr. Virendra Mohan passed MBBS examination from Rohatak College in 1969 and thereafter qualified M.D. in Psychiatry from P.G.I. Chandigarh in 1973. He is running a private hospital for mentally ill persons under the name and style of Dr. Virendra Mohan Hospital at Dharampur in District Solan. He examined the accused for the first time on 2-7-1995 and found him suffering from paranoid schizophrenia of two months duration. The evidence of Dr. Virendera Mohan shows that the accused was taking alcohol, hemp and smoke. He sent consignment of drugs to the accused through V.P.P. on 17-12-1999 as the accused was required to take drugs regularly but he was not taking the drugs. It has come in the cross-examination of the doctor conducted by learned Public Prosecutor that if the person is suffering from paranoid schizophrenia and if the ailment persists for two years, such person was required medical treatment and drugs for whole of his life. The accused was examined second time by Dr. Virendra Mohan on 13-6-1999. According to the version of Dr. Virendra Mohan, the accused would be relieved of symptoms of ailment within two months after the drugs administered to him and the attack of paranoid schizophrenia would last for several days may be up to one month. Dr. Virendra Mohan has admitted in the cross-examination that he did not admit the accused in the hospital since he knew that the accused would get improved if he consumed the drugs prescribed by him. He found the accused somewhat normal on 13-6-1999 when the accused was brought to the hospital. Dr. Virendra Mohan has categorically stated that in May, 2000 when he appeared as DW-1 in the Court, the accused was found normal. On scrutiny of the evidence of Dr. Virendra Mohan, the accused was of normal mind during his trial by the learned trial Court. On 13-6-1999 when the accused was medically examined by Dr. Virendra Mohan, he was found some what normal and the accused was given drugs as prescribed by Dr. Virendra Mohan. P.W.-12 Dr. Ganga Rawat in his cross-examination has stated that when he examined the accused on 28-10-2000 at 2 p.m. he found the accused answering the questions intelligently therefore, he concluded that the accused was not suffering from mental ailment at the time of medical examination. It is his evidence that he has carried out the house job for six months in Psychiatric wing of I.G.M. C. Shimla apart from professional course. The suggestion of the defence that the accused was suffering from mental ailment is categorically denied by him. Therefore no benefit can be availed by the accused from the evidence of Dr. Virendra Mohan to prove that the accused was of unsound mind at the time of the commission of the offence and as such, incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. In the absence of any material to discharge that burden, we are satisfied that the accused was sane and understood the implications of the act done by him and in no case was having unsound mind within the meaning of Section 84, I.P.C. at the relevant time. The prosecution has proved the circumstances which lead to the only inference of the involvement of the accused in the commission of the crime based upon reliable, trustworthy and cogent evidence and the incriminating circumstances discussed hereinabove in the earlier part of the judgment. We do not find any ground to draw any other inference in the present case. The accused stands rightly convicted and sentenced for the offence under Section 302, I.P.C. There is no substance in this appeal which is accordingly dismissed.
28. A copy of this judgment shall be sent by the Registry office to the accused through Superintendent of Jail for his information.
29. Before parting with the judgment, we place on record our appreciation for the valuable assistance rendered to us by Mr. Tarlok Chauhan (Advocate) Amicus Curiae.