JUDGMENT
Saroj Bala, J.
1. The judgment and order dated October 20, 1997 passed by the 1st Additional Sessions Judge, Bijnor in Sessions Trial No. 138 of 1994 State v. Jaipal Singh whereby, convicting and sentencing the accused-appellant for the offence punishable, under Section 302 I.P.C. P.S. Seohara, District Bijnor is under challenge in his appeal.
2. The facts giving rise to the prosecution and conviction of the appellant in a nutshell are On 2.1.1994 in Seohara police station campus at the Chabutra outside the office, H.C. Rakshpal Singh was distributing salary for the month of December 1993 and accused appellant C.P. 1116 Jaipal Singh, C.P. 243 Ramswarup Singh (deceased) and constables Uma Shanker, Bhadrasen, Naresh Chandra Saxena, Kapil Kumar, Rishiram, Rajpal Mishra, Jogendra Singh, Satyaprakash and Viresh Kumar were present there for receiving their salary. At about 11 A.M. C.P. 1116 Jaipal Singh and C.P. 243 Ram Swaroop Singh after receiving their salary went to Barrack No. 2 where they resided together. All of a sudden sound of indiscriminate firing of shots was heard from the veranda, of Barrack. On hearing the sound of firing S.I. Vindhiyachal Singh Gautam, first informant(P.W. 1), S.I. Preetam Lal, S.I. Inspector Singh (P.W. 3) S.I. K.K. Sharma, H.C. Uma Shankar Sharma (P.W.4), constables Vidhayaram Verma, Omveer Singh, Bhagwan Singh who were present in the office premises of police station Seohara hurriedly reached at the spot and saw constable Ram Swaroop Singh lying in a pool of blood and accused-appellant was sitting on his chest with service revolver in his hand, The accused-appellant was captured at the spot with revolver. Constable Ram Swaroop Singh was found dead. The written report of the incident (Ext.Ka-1) was lodged at P.S. Sedhara by S.I. Vmdhiyachal Singh Gautam on 2.1.1994 at 11.20 A.M. on the basis of which chick F.I.R. (Ext. Ka-11) was prepared by H.C. 77 Uma Shanker (P.W.4). The crime was registered at serial no 22 of the general diary (Ext. Ka-12). The revolver and six empty cartridges used in the commission of offence were taken in police custody under the memo (Ext. Ka-2). The special report of crime was sent the same day at 11.45 A.M. and entry was made in the G.D. at serial No. 23 (Ext. Ka-13).
3. The inquest on the dead body of constable Ram Swaroop Singh was conducted by S.I. Preetam Lal (P.W.7) in the presence and under the directions of S.D.M. Leela Singh Chauhan. Inquest memo and other papers were prepared at the dictation of Sub-Divisional Magistrate. He prepared the site plan of the place of offence (Ext.Ka-17). He took in police custody blood stained brick pieces and plain brick pieces (Ext. 8 and Ext. 9) two bullets (Ext. 10 and Ext.-11) from the spot under the memos (Ext. Ka-18 and Ext.Ka-19). Blood stained Jarsi and woollen Shawl (Chadar)(Ext. 12 and Ext. 13) of accused-appellant were taken in police custody under the memo (Ext. Ka-20).
4. The autopsy on the dead body of C.P. Ramswaroop Singh was conducted by Dr. P.K. Shukla (P.W.5) on 3.1.1994 and following ante mortem injuries were found on the person of the deceased as recorded in the postmortem report (Ext. Ka-14)
Gun shot wound of entry, lacerated wound on left side neck in its middle 1 cm. × 0.5 cm. × cavity deep. No blackening or tattooing was found. Direction of the wound was from left to right.
2. A gun shot of exit, lacerated wound on right side neck in its middle, 1.5 cm. × 1.5 cm. Measuring 4 cm. Above from the rood of the nick. Injury No. 1 was communicating with injury No. 2 Soft tissue, carotid vessels and trachea were found lacerated.
3. A gun shot wound of entry, lacerated wound on left side of Zygomatic part 1 cm. × 1 cm. × cavity deep. One bullet was recovered from the right side of the neck, middle part embedded in muscle mass.
4. Gun shot wound of entry, lacerated wound on left side of chest, 9 cm. above from the left nipple. Dimension 1 cm. × 1 cm. × cavity deep.
5. Gun shot wound of exit, lacerated wound on right side chest in front of clavical region 10 cm. below acromion process of right shoulder. No blackening or tattooing was found around the wound. This wound was communicating to wound No. 4. Mendible found fractured on left side.
6. A gun shot wound of entry on left side of chest on the level of 11 xphisternum 1 cm. × 1 cm. × cavity deep. No blackening or tattooing was found. Right side sixth rib was found fractured. A bullet was found in right Thorax cavity. One liter clotted blood was present.
The death was caused due to shock and hemorrhage as a result of ante mortem gun shot injuries.
5. On 6.1.1994 the investigation of this case was taken over by Raj an Tyagi (P.W.6) then posted as station officer at Seohara. He recorded the statements of first informant and other witnesses. After his transfer from P.S. Seohara, the investigation was taken over by S.I. Dhirendra Singh Yadav. The sanction for prosecution (Ext. Ka.16) of accused-appellant was received on 15.2.1994. After completion of all the necessary formalities the charge sheet (Ext.Ka 15) was submitted against the accused-appellant.
6. The committal proceedings were conducted by C.J.M. Bijnor who by the order dated 15.4.1994 committed the accusedappellant to the court of Sessions for standing trial for the offence punishable under Section 302 I.P.C.
7. Before the framing of charge the plea of lunacy raised by the accused-appellant by an application under the provisions of Sections 328 Cr.P.C. and 329 Cr.P.C. was considered by the trial court The Senior Superintendent of Mental Hospital Varanasi vide report dated 29.9.1995 having certified that the accused-appellant was a person of sound mind, the trial commenced.
8. To prove the guilt of accused-appellant the prosecution examined S.I. Vindhiyachal Singh Gautam (P.W. I) and S.L Inspector Singh (P.W.3) as eyewitnesses. C.P. 1170 Satayapal Singh (P.W.2) took the sealed bundle containing the dead body for autopsy. H.C. Urma Shankar (P.W.4) proved the chick F.l.R. and G.D. entry of registration of crime. Dr. P.K.. Shukla (P.W.5) conducted the autopsy on the dead body. Rajan Tyagi (P.W.6) and Preetam Pal (P.W.7) were investigating officers.
9. The accused-appellant in his statement under Section 313 Cr.P.C. denied the prosecution allegations in toto. He gave out that he was suffering from mental illness two or three months before and used to suffer from fits. According to him the officials posted at police station were annoyed with him and got him falsely implicated to save their skin. Constable 828 Nandan Singh (D.W.I) was examined to prove the G.D. entry (Ext. Kha-1).
10. Dr. P.K. Shukla (C.W. 1), H.C. Rishipal Singh (C.W. 2), Smt Bugli (C.W. 3) brother and mother of the accused, S.I. Rajan Tyagi (C.W. 4) H.C. 77 Uma Shankar Sharma (C.W. 5), Dr. Ashok Kumar Dhiman (C.W. 6) were examined before the framing of charge to inquire and determine the question of unsoundness of mind of accused-appellant.
11. The plea of insanity of accused did not find favour with the trial court. On appraisal of prosecution evidence the trial court found that the evidence of eyewitnesses was of unimpeachable character and recorded the finding of conviction and sentenced the appellant with rigorous imprisonment for life.
12. We have heard Shri S.C. Tewari and Shri D.P. Singh, learned Counsel for the appellant, learned A.G.A. and have perused the original record.
13. The learned Counsel for the appellant vehemently argued that appellant was suffering from insanity at the time of the alleged killing of C.P. Ramswaroop, therefore, he was entitled to the benefit of general exception contained under Section 84 I.P.C. The learned trial judge has erred in law in not appreciating the evidence and holding that accused-appellant did not suffer from legal insanity. The eyewitnesses having reached the spot after hearing the sound of fire they had no occasion or opportunity to view the commission of offence. The learned Counsel in support of his contention placed reliance on the decisions in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat , RatanLal v. State of Madhya Pradesh , Narayan v. State of U.P. 1991 ALJ 591, Bai Ramilaben v. State of Gujarat 1991 (Cri.LJ.) 2219 and Shrikant Anandrao Bhosale v. State of Maharashtra 2003 S.C.C. (Cri.) 144.
14. On the contrary learned A.G.A. argued that defence of insanity is an after thought. It has been established that appellant was neither talking incoherently nor behaving abnormally at the time or after the commission of offence. There was no cogent and reliable evidence of any previous history of mental illness. The defence of legal insanity was not proved.
15. This fact remains unchallenged that the victim died a homicidal death. As many as six gun shot wounds were found on the person of deceased out of which four were entry wounds. The entry wounds were on left side neck, left side of zygomatic part, and left side of chest. The intention and knowledge to kill the victim was apparent. The injuries caused were sufficient in the ordinary course of nature to cause death. Dr. P.K. Shukla (P.W. 5) has proved the postmortem certificate (Ext. Ka-14) and deposed that death was on account of shock and haemorrhage as a result of ante-mortem injuries.
16. The incident took place at 11 A.M. on 2.1.1994 in the verandah of Barrack situated in the campus of police station Sheora. The accused-appellant was captured at the spot with service revolver .38 bore with six empty cartridges in its chamber. The service revolver was surreptitiously taken out by the appellant from Malkhana of the police station. The Jarsi and woollen Shawl worn by the accused-appellant were found blood stained. Out of the four bullets recovered from the spot and body of the deceased, the striations found on two bullets matched with the striations of bullets fired from the recovered revolver for the purpose of examination. The marks found on the recovered empty cartridges tallied with the examined cartridges. The recovered bullets E.B. 1 and E.B. 4 were found fired from the recovered revolver .38 bore. Besides this there is ocular testimony of S.I. Vindhyachal Singh Gautam (P.W. 1) and S.I. Inspector Singh (P.W. 3).
17. The witness Vindhiyachal Singh Gautam (P.W.I) has categorically stated that on 2.1.1994 he was Divas Adhikari and was sitting in the verandah of the office of Station House Officer and S.I. Inspector Singh, S.I. K.K. Sharma and Preetam Lal were also sitting there. H.C. Uma Shanker, Constable Vidhyaram, Constable Bhagwan Chand and Ors. were present in the office. H.C. Rakshpal Singh was distributing salary at the platform of police station. Accused Jai Pal Singh and deceased Ram Swaroop resided together in the Barrack and both of them after receiving their salary returned to the Barrack together. At about 11 A.M. on hearing the sound of fire he as well as other police officials present at the police station reached at the spot and accused fired four more shots from the service revolver at Ram Swaroop. After firing the shots the accused lay over the victim Ram Swaroop with revolver in his right hand. He was captured with revolver at the spot. He has proved the written report (Ext. Ka-1) and recovery memo (Ext.ka-2) relating to the revolver and empty cartridges. In the cross-examination he deposed that there was nothing between the place where he was sitting and the Barrack obstructing the visibility of the verandah of Barrack. He stated that Ram Swaroop was lying in a pool of blood in the verandah towards the Eastern direction. It is there in his testimony that when they reached in the verandah of the Barrack Ram Swaroop was lying in a pool of blood and Jai Pal Singh was sitting over him.
18. To the same effect is the testimony of S.I. Inspector Singh (P.W.3) In his cross-examination he gave out that when they saw Ram Swaroop for the first time he was standing and he fell down after receiving four gun shot injuries. According to him at the time of firing Ram Swaroop was are distance of about one ft. from the accused.
19. The incident having taken place in the verandah of Barrack situated in the campus of police station the presence of the witnesses was natural and probable. Their testimony receives corroboration from attending circumstances is stated above. In our opinion the trial court has discussed, analysed scanned and evaluated the prosecution evidence in a correct perspective in coming to the conclusion the accused appellant had inflicted the aforesaid fatal gun shot injuries to C.P. Ramswaroop causing his death.
20. Now the crucial controversy which arises for determination is as to whether at the time of the incident the accused-appellant was suffering from legal insanity so as to bring his case within the preview of exception under Section 84 I.P.C.
21. In order to bring the case within the ambit of exception under Section 84 I.P.C. the court has to consider whether, at the time of commission of offence, the accused by reason of unsoundness of mind was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The onus of proving any of the general exceptions falling under Chapter IV lies upon the accused.
22. In State of M.P. v. Ahmadulla the Apex Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of his exemption vide Section 105 of the Evidence Act (Illustration) (a) The settled position of law is that every man is presumed to be sane and to possess sufficient degree of reason to be responsible for his act unless the is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV.
23. The Apex Court dealing with the scope of Section 84 I.P.C. in the case of Dahyabai Chaggan Bhai Takkar (Supra) held:
It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason, of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of ‘shall presume’ in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a ‘prudent man’. If the material placed before the court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of ‘prudent man’ the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instances, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.
24. In the case of Sharali Wali Mohammad v. State of Maharastra the Apex Court held that the crucial point of time for ascertaining the state of mind of accused is the time when the offence was committed. The accused was in such a state of mind as to be entitled to the benefit of Section 84 I.P.C. can only be established from the circumstances which preceded, attended and followed the crime.
25. Keeping in view the above well settled principles of law let us examine the evidence adduced with regard to appellant’s plea of unsoundness of mind prior to or at the time of alleged incident.
26. Dr. P.K. Shukla (C.W.I) then posted as Medical Officer, Bijnor depbsed that from 19.8.94 to 31.8.94 he kept the accused-appellant under observation and found his daily routine, diet, sleep, mood, appearance, thinking power and memory normal. Some time his mood used to be upset. He submitted the report on 2.9.1994 stating therein that accused was not insane but made recommendation for his medical examination at Meerut Medical College, if necessary. In the cross-examination he gave out that by abnormal mood he meant that mood of patient used to become depressed sometimes and depressed mood indicates mental strain but it is not an ailment. According to him a person can do anything under mental depression or he may not do anything. He further stated that the blood pressure of a person under depression may increase but it is not always necessary. He refuted the suggestion that a person under depression loses capacity of thinking. He further deposed that it is possible that his thinking power may reduced to some extent. According to him he did not consult any psychiatric before submission of his report. He testified that he used to enquire about the sleeping hours of accused from the ward in-charge nurse.
27. Rishipal Singh (C.W. 2) is the real brother of accused-appellant. According to him on 4.11.1993 Station Officer P.S. Seohara informed him through constable that his brother was mentally sick. He went to police station Seohara and applied for three days leave. According to him station officer recommended earned leave to accused from, 6.11.1993 to 30-11.1993 on the ground that his mental condition was not sound. He testified that he kept his brother at his residence at Moradabad. According to him his brother used to weep, cry and tried to run away and he ran away jumping the boundary wall but was chased and found at the railway station Moradabad. He took his brother to Saharanpur, his native place and consulted Dr. Ashok Kumar of Roorkee.and his brother remained under his treatment from o.H.1993 to 30.11.1993. In the cross examination he deposed that he came to know about the unsoundness mind of his brother on 3.11.1993 after receiving information from station officer Seohara and prior to that there were no symptoms of insanity. He stated that Dr. Ashok Kumar had advised to consult another doctor and on 8.12.93 he consulted Dr. Girish Chandravali who gave medicine for twenty one days. According to him Dr. Tyagi had had advised his brother to join duty at the police station and undertake light work and his brother joined his duty on 11.12.93.
28. Smt. Bugali (C.W. 3) mother of the appellant stated that when her elder son Rishipal Singh brought her son constable Jai Pal Singh to Saharanpur his condition was very bad. He was unable to take meals and perform daily routine and tried to run away. In the cross-examination she gave out that her son for the first time appeared to be of unsound mind when he was brought by her elder son.
29. S.I. Rajan Tyagi (C.W. 4) denied that the accused was mentally ill at the time of incident. He admitted that 30 days earned leave was sanctioned by the Additional S.P. and when he resumed duty he was not suffering from any ailment.
30. Dr. Ashok Kumar Dhimar (C.W.6) stated that the accused Jai Pal Singh remained from 8.11.1993 to 15.11.1993 in Rajkeeya Arvind Chikitaysalay Roorkee for treatment of mental depression. He stated that the accused at the time of his stay in the hospital suffered from insomnia, lack of appetite, constipation and used to throw away toys and blocks and he was kept tied and confined in a room. He proved the medical certificate (Ext.C.3). In the cross-examination he gave out that accused Jai Pal Singh was discharged from the hospital on 15.11.1993 because he was not improving with his treatment. He was advised to take treatment from expert Neurologist. He admitted that the patient did not recover and was advised to consult Neurologist but that fact was not mentioned i:i the certificate. According to him the word M.D.P. mentioned in certificate is the name of a mental disease.
31. The accused-appellant after availing the earned leave joined official duty on 11.12.1993. The deposition of Rishipal Singh (C.W.2) appellant’s brother that Dr. Tygai had advised his brother to join official duty at the police station and to do light work and his brother joined duty on 11.12.1993 reveals that he was not suffering from any mental disorder on the date of joining his official duty. The accused-appellant was produced before the Magistrate for remand on 3.1.1994 but plea of insanity was not taken by him. The police personnel producing him for remand having neither complained to the Magistrate about any irratic behaviour nor the court while remanding him to judicial custody found his behaviour abnormal. The grant of remand by Magistrate on 3.1.1994 and on subsequent dates indicates that the accused-appellant was not suffering from any mental disorder. In the bail application moved on 18.2.1994 before the Chief Judicial Magistrate Bijnor the plea of insanity was not taken as a ground for bail. The plea of insanity was raised for the first time before the Sessions Judge Bijnor at the stage of framing of charges. The charge sheet in this case was submitted in the court on 28.2.1994 and the case was committed to the court of Sessions Judge on 15.4.1994. The plea of insanity raised for the first time more than five months after the incident was an afterthought. The accused-appellant was kept under observation by Dr. P.K. Shukla (C.W.I) from 19.8.1994 to 31.8.1994 but he did not find any abnormality or mental disorder. The medical report (Ext. C-3) of Dr. Ashok Kumar Dhiman (C.W.6) reads as hereunder:
I, Dr. Ashok Kumar Dhiman after careful examination hereby certify that Shri Jai Pal Singh Padder of Navin Nagar SRE, whose signature is given below was suffering from reactive depression M.D.P.
I consider that a period/an extension of absence from duty for 23 days with effect from 3.11.1993 to 30.11.1993 was absolutely necessary for restoration of his health.
32. The medical certificate was issued by Dr. Ashok Kumar Dhiman for the purpose of absence from duty. Dr. Ashok Kumar is not a Neurologist or psychiatric. The medical certificate does not contain any advice to consult a Neurologist for further treatment. In compliance of the orders of trial Judge the accused-appellant was sent to L.L.R.M. Medical College Meerut and was medically examined by Dr. R.K. Agarwal on 7.2.1995. The report of Dr. Agarwal reads, ‘he is indulging in acting out and attention seeking behaviour’. The facility for test like E.E.G. and C.T, scan not being available in Medical College Meerut, the accused-appellant was sent to Mental Hospital Varanasi in pursuance of the order of the trial court. The Chief Medical Superintendent, Mental Hospital Varanasi vide report dated 29.9.1995 (paper No. 33 Kha) reported that the appellant was mentally fit. The accused-appellant in his statement under Section 313 Cr.P.C. gave out that he was suffering from mental illness two or three months before and he used to suffer from fits. The accused-appellant remained on earned leave for one month from 6.11.1993 to 30.11.1993 but he did not consult a Neurologist or psychiatric. Being a police constable he was entitled to undergo treatment in Police Hospital or at any other higher Mental Hospital after being referred from there. The medical certificate (Ext. C-3) issued for the purpose of absence from duty does not prove that accused-appellant was a lunatic on the date of incident or prior to it. He was medically examined and kept under observation at different hospitals before commencement of trial but was found to be a normal person.
33. On the basis of depositions of witness and documentary evidence no conclusion can be drawn that the appellant was of unsound mind at or about the time of occurrence. His behaviour at the time and subsequent to the commission of offence clearly indicates that he knew and was capable of knowing the nature of the act done by him. At no point of time his behaviour was abnormal. We are satisfied that the accused-appellant was mentally fit at the time of commission of offence and understood the implications of his act, therefore, his case does not fall within the Exception under Section 84 I.P.C.
34. We find no infirmity in the conclusions drawn by the trial court that the appellant was the assailant and he did not suffer from legal insanity prior to or at the time of incident and accordingly convicting and sentencing him with rigorous imprisonment for life. Consequently this appeal fails.
35. The criminal Appeal No. 1.974 of 1997, Jai Pal Singh v. State of U.P. is hereby dismissed. The judgment and order dated 20.10.1997 whereby convicting and sentencing the accused-appellant with rigorous imprisonment for life is affirmed. The accused-appellant Jai Pal Singh is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
36. Certify the judgment to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Bir or within four weeks from date of receiving the copy of this order.