JUDGMENT
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29-12-1994, passed 5 by learned III Additional Sessions Judge, Chhatarpur in Sessions Trial No. 160/92, convicting the appellant under Section 302 of IPC and sentencing him to suffer rigorous imprisonment of life, this appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief the case of prosecution is that complainant Bhola lodged first information report on 7-8-1992 in the concerning police station mentioning therein that in the morning of Friday, he along with his younger brother Kashi Prasad (hereinafter referred to as the ‘deceased’) went to graze the catties. In the field where their catties were grazing, Hakim Lodhi and Govind Lodhi were also grazing the catties. At that juncture, at 9:00 a.m., appellant carrying with an axe arrived there and dealt its blows on the person of the deceased. On account of fear, Hakim Lodhi and Govind Lodhi flee away from the place of occurrence. On seeing the incident, Bhola (author of the FIR) scolded and rushed to save his younger brother Kashi Prasad, the deceased. At that juncture, the other accused persons namely Dhaniram @ Sibban, Janki and Udal told appellant Halkan that the deceased may not be escaped. On account of causing of Injuries by axe, the deceased fell down and died. Thereafter, all the accused persons ran away from the spot.
3. It is the further case of prosecution that Govind Lodhi thereafter went and narrated the incident to Pyare and Kalua Ahir arid they also arrived at the spot. The other inhabitants of the village also arrived at the place of occurrence. The deceased was uplifted by the village people and was kept on a Cot and was brought to the police station where a FIR was lodged by Bhola (PW-2), who is the elder brother of the deceased.
4. On lodging of the FIR, the criminal law was set in motion. The Investigating Agency arrived at the spot; seized the dead body of the deceased and sent it for postmortem; seized ordinary and blood stained earth from the spot; recorded the statement of the witnesses; arrested the accused persons; at the instance of appellant seized the axe, which was used as a weapon In the commission of the offence.
5. After completion of the investigation, a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for trial.
6. Learned Trial Judge on going through the charge-sheet and looking to the averments made against accused persons framed charges punishable under Section 302 and in the alternative under Section 302/34 of IPC.
7. Needless to emphasize, all the accused persons abjured their guilt and pleaded complete innocence.
8. In order to bring home the charges, the prosecution examined as many as seventeen witnesses and placed Ex. P/1 to Ex. P/21, the documents on record.
9. The defence of accused persons is of maladroit implication and the same defence has been set forth by them in their statement recorded under Section 313 of Cr.P.C. However, in support of their defence, they did not examine any witness.
10. The specific defence put forth by appellant in his statement recorded under Section 313, Cr.P.C. is that he has been falsely implicated on account of enmity.
11. Learned Trial Judge after appreciating and marshaling the evidence came to hold that except present appellant, the prosecution has not been able to prove its case against other co-accused persons namely Janki, Udal and Dhaniram @ Sibban, and eventually, acquitted them from all the charges. However, according to learned Trial Judge, there is overwhelming evidence against the present appellant and hence, he has been convicted under Section 302 of IPC and has been sentenced to suffer rigorous imprisonment of life.
12. In this manner, the present appeal has been filed by appellant assailing«the impugned judgment of conviction.
13. It has been argued by Shri Satish Chaturvedi, learned Counsel appearing for appellant that in the present case, the prosecution has cited three persons as eye-witnesses and they are PW-2 Bhola, PW-3 Govind Das and PW-5 Maluka. Out of these three persons, PW-2 Bhola is also the author of FIR (Ex. P/1). The contention of learned Counsel is that learned Trial Court has held in the impugned judgment that Bhola (PW-2) is not an eye-witness as he has not seen the incident.
14. By inviting our attention to the evidence of PW-5 Maluka, it has been argued by learned Counsel for appellant that he cannot be said to be an eye-witness since he arrived at the spot, after the incident had taken place. So far as the evidence of PW-3 Govind Das is concerned, the submission of learned Counsel is that looking to the facts and circumstances, he cannot be said to be an eye-witness. Thus, the present case is of no evidence, and hence, learned Trial Judge erred in law in convicting the appellant.
15. By inviting our attention to the FIR (Ex. P/1) and the evidence of PW-3 Govind Das, it has been argued that one Hakim Lodhi is also an eye-witness but for the reasons best known to the prosecution, he has not at all been examined.
16. It has been further contended by Shri Satish Chaturvedi, Advocate that looking to the facts and circumstances and the evidence placed on record! particularly the evidence of PW-7 Gauri Shankar, it can be said that appellant is an insane person and, therefore, Section 84 of IPC would be applicable. Hence, appellant has not committed any offence.
17. On these premised submissions, it has been argued by learned Counsel for appellant that this appeal be allowed and the conviction of accused/appellant be set aside.
18. Per contra, Shri Shailendra Singh Bisen, learned Government Advocate appearing for respondent/State argued in support of the Impugned judgment.
19. Having heard learned Counsel for the parties, we are of the view that this appeal deserves to be dismissed.
20. We shall first of all deal with the argument placed reliance by learned Counsel for appellant in regard to the insanity of the accused. This plea has been raised for the first time in this Court. This was not the defence nor this plea was ever raised by the appellant during the trial.
21. On going through the cross-examination of the witnesses, it is gathered that this plea was also not set up at the time when the witnesses were being cross-examined. This plea was not even put forth at the time of framing of the charge as well as in the accused statement recorded under Section 313, Cr.P.C. The specific plea put forth by appellant in his statement recorded under Section 313, Cr.P.C. is that on account of enmity, he has been falsely implicated.
22. It is well-settled in law that if a plea of insanity is set up by the accused, the burden of proof is on him to prove it. The Supreme Court in the case of Bhikari v. The State of Uttar Pradesh , has held that undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had 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. The presumption is rebuttable and the accused can rebut 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 and if it is found that accused is an insane, he will be acquitted.
23. The plea of insanity was not raised by appellant in the Trial Court arid for the first time, it has been raised here in the appeal. True, this plea can be raised in appeal also. But, there should be material to uphold such a plea. On scanning the record of the Trial Court as well as the evidence, we find that there is nothing on record in order to show that appellant was acting in any abnormal manner on the date of occurrence or he had any history of insanity.
24. Even, on going through the statement of PW-7 Gauri Shankar, it is difficult to hold that appellant is an insane. Merely, it has been said by this witness that earlier also appellant murdered one more person and for the said offence, he was arrested and was sent to jail would not in itself is a ground to hold that appellant is an insane person.
25. If we closely scrutinize the evidence of PW-7 Gauri Shankar, particularly para 3, it is gathered that after coming out from Sagar Jail, appellant told this witness and the inhabitants of the village that now he will graze the catties of the village persons. Thus, it cannot be said that appellant is an insane person.
26. Learned Counsel for appellant also tried to establish the plea of insanity on the touchstone of the evidence of PW-17 G.D. Soni, who at the relevant point of time was serving as an A.S.I, in Police Station Harpalpur.
27. Merely because appellant was resisting himself from the arrest and was pelting the stones on the police party, when it arrived to arrest him would not be a ground to hold that appellant was an insane person. On the other hand, it is fully established that he is a sensible person and was trying to avoid his arrest and was resisting himself arrest.
28. Thus, for the reasons stated herein above, we do not find any merit in the contention of learned Counsel for appellant that at the time of occurrence, the appellant was insane. On the contrary, it is proved that he was a sensible person and was sane.
29. Coming to the merit of the case, we shall now examine the evidence of PW-2 Bhola. This witness is also an author of FIR (Ex. P/1). Though, this witness in the beginning has stated that appellant caused injuries by an axe to the deceased. Later on, he deviated from his statement and has stated that he did not see appellant causing injuries by the axe to the deceased. In that regard paras 10 and 15 of the evidence of this witness may be seen. In para ,15, this witness has specifically stated, that statement which he gave in examination-in-chief that he saw appellant causing injuries by the axe to the deceased, is not correct. Indeed, he did not see appellant causing Injuries by the axe to the deceased. Though, in para 16, this witness has stated and has given an explanation that since he saw the Injuries on the person of the deceased, therefore, he is under impression that appellant has caused injuries to the deceased by the axe.
30. Learned Trial Judge also in paras 12 and 13 of the impugned Judgment has held that this witness is not an eye-witness. Thus, we may ignore the evidence of this witness, as he is not an eye-witness.
31. Similarly, on going through the evidence of PW-5 Maluka, we find that he is not an eye-witness because in para 2, this witness has specifically stated that he was in his field and Govind Lodhi told him that appellant has caused the injuries by the axe to the deceased and when he arrived at the spot, he found the deceased to be dead.
32. The only witness which now remains is PW-3 Govind Das. This witness has specifically stated that he was sitting along with the deceased and he saw that appellant arrived there and dealt blows of axe on the person of the deceased, which landed on his neck and temporal region. This witness was cross-examined at length, but, he remained vivid and has firmly stated that in his presence, the appellant has caused Injuries by the axe to the deceased.
33. Learned Counsel for appellant could not point out that how and on what ground, the evidence of this witness should be disbelieved. On the other hand, after X-raying, we find that the evidence of PW-3 Govind Das is clear, cogent and trustworthy. Thus, from the evidence of this witness it is proved that appellant dealt the axe blows on the person of the deceased, as a result of which, he died.
34. The next question now would arise whether appellant has committed the offence under Section 302 of IPC or has committed some lesser offence. In order to ascertain that what offence appellant has committed, we shall now examine the evidence of Autopsy Surgeon, Dr. Ashok Bodkey (PW-15).
35. On going through the evidence of this witness, we find that the deceased sustained following injuries:
(i) one incised wound on right side of the fronto parietal region 11 cm X 3 1/2 cm X bone deep and the bone was cut;
(ii) incised wound on the right side of Jaw 5 cm X 1/2 cm X bone deep and the bone was cut;
(iii) incised wound on the back side of the head at the occipital region 10 cm X 2 cm X bone deep and the bone was cut;
(iv) incised wound behind the neck, which was started from the right side of the ear and was going up to neck region 11 cm X 4 cm X bone deep and the fifth cervical bone was cut;
(v) incised wound on the middle finger of right hand 2 cm X 1 cm X bone deep and the bone was cut;
(vi) incised wound placed over back of the chest in the middle line going towards the armpit.
36. According to the doctor, all the injuries were caused by hard and sharp edged weapon. The cause of death was due to sudden excessive haemorrhage. According to the doctor, on 22-8-1992, the concerning police station sent one axe to him and after examining the said axe, opinion was given that the injuries sustained to the deceased could have been caused by the said axe.
37. Looking to the nature of the injuries as they were given by the axe on the vital organs of the body and looking to the number of blows as six blows were dealt, we are of the view that it is a cold blooded murder and the appellant has committed the offence of culpable homicide amounting to murder.
38. We have also given our anxious and bestowed consideration to the reasonings assigned by the Trial Court, we find them to be clear, cogent and trustworthy. Thus, by this judgment, we hereby extend our stamp of approval to the reasonings assigned by learned Trial Judge.
39. Resultantly, this appeal is found to be devoid of any merit and the same is hereby dismissed.