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Jang Bahadur Singh vs State Of Bihar on 4 December, 2008

Patna High Court
Jang Bahadur Singh vs State Of Bihar on 4 December, 2008
Author: Smt. Mridula Mishra
                             CRIMINAL APPEAL No.21 OF 2003 (DB)

                                                 ***

Against the judgment dated 27th August, 2002 and order dated
29th August, 2002 passed by Sri Dharnidhar Jha, Sessions
Judge, Rohtas at Sasaram in Sessions Trial No.403 of 2001.

***

JANG BAHADUR SINGH, SON OF LATE RADHA KISHUN SINGH,
RESIDENT OF VILLAGE PATRAWAL, P.S. BIKRAMGANJ, DISTRICT
ROHTAS——————————————–APPELLANT
Versus
THE STATE OF BIHAR——————————-RESPONDENT

***

For the Appellant: Mrs.Bela Singh, Advocate
(Amicus Curiae)

For the State : Mr.Lala Kailash Bihar Prasad,Sr.Advocate
(Addl. P.P.)
***

P R E S E N T

THE HON’BLE JUSTICE SMT. MRIDULA MISHRA

THE HON’BLE MR.JUSTICE SYED MD.MAHFOOZ ALAM

***

Mridula Mishra &
S.M.M.Alam, JJ. Sole appellant Jang Bahadur Singh has preferred this

appeal from the jail. At the time of admission of this

appeal, Mrs. Bela Singh, Advocate was appointed Amicus

Curiae to represent the appellant. She has appeared for the

appellant at the time of hearing also.

2. The appellant by the judgment and order dated

27.8.2002 and 29.8.2002, respectively, has been convicted

under Section 302 of the Indian Penal Code in Sessions

Trial No.403/01 by the Sessions Judge, Rohtas at Sasaram.

He has been sentenced to undergo rigorous imprisonment for

life.

2

3. Bikramganj P.S. Case No.79 of 2001 was registered on

12.6.2001 at 5.00 P.M. on the basis of the fardbeyan of

informant Nirmal Singh recorded at 2.30 P.M. at village

Patrawal, P.S. Bikramganj, District Rohtas. The informant

in his fardbeyan has stated that Jang Bahadur Singh is his

youngest brother, informant is the eldest one and second

brother Birbal Singh resides with his family at Assam.

Three brothers were separate in mess and business for 7-8

years but still they reside in the same house. About one

year prior to the occurrence, Jang Bahadur had killed his

brother-in-law by throttling his neck but in this regard no

police case was instituted by his in-laws as they thought

that they have already lost the son and if police case is

also instituted, life of their daughter will also be

ruined. Jang Bahadur subsequent to the murder of his

brother-in-law started residing at his native village

Patrawal as earlier he used to reside at his in-laws place.

Bibha Devi, wife of Jang Bahadur was not maintaining good

relationship with her husband since the murder of her only

brother. Jang Bahadur had two sons and one daughter. The

informant came to know about the murder of Jang Bahadur’s

brother-in-law when Bibha Devi came along with her children

from her parents village to village Patrawal and started

residing there. On 12.6.2001 at 12.00 noon the informant

was taking his bath when children and female members of the

family came shouting that Jang Bahadur has locked his wife

inside the room and assaulting her. The informant and his

co-sharers Birendra Singh, Mithilesh Singh , Shankar Singh,

Anil Singh and others ran towards the courtyard and saw

that the room of Jang Bahadur was locked from inside. They

started shouting and asking Jang Bahadur to open the door
3

but there was no response from inside. The informant became

suspicious that his brother might have killed his wife, as

such he locked the room from outside and gave a telephonic

message to Bikramganj Police Station about the incident.

The Officer Incharge along with police force came at the

place of occurrence. Outside lock was removed in presence

of the police and again request was made to Jang Bahadur

for opening the door. Jang Bahadur finally opened the door

and came out of the room with blood-stained Dao. The

informant thereafter entered into the room and saw that

Jang Bahadur had killed his wife Bibha Devi with Dao. Bibha

Devi was lying dead with several cut injuries on his

person. Jang Bahadur was arrested by the Officer Incharge

of the Police Station at the place of occurrence itself.

Blood-stained Dao was seized by the Officer Incharge and

fardbeyan of the informant was recorded at the place of

occurrence.

4. On the basis of the fardbeyan of the informant,

Bikramganj P.S. Case No.79/01 was registered under Section

302 of the I.P.C. The Officer Incharge prepared inquest

report, started investigation of the case. The dead body

was sent for post mortem. Seizure of the blood-stained Dao

was made. In course of investigation statements of family

members and neighbours were recorded by the Investigating

Officer and on completion of investigation charge sheet was

submitted against the accused. On submission of the charge

sheet cognizance was taken and the case was committed to

the Court of Session for trial.

5. The prosecution in order to prove the charges framed

against the accused examined altogether nine witnesses.

P.W.1 Mithilesh Singh, P.W.2 Birendra Kumar, P.W.4 Girija
4

Devi and P.W.5 Usha Devi were declared hostile and cross-

examined by the prosecution. All these hostile witnesses

partly supported the case of the prosecution but denied

that their statements were recorded by the Investigating

Officer under Section 161 of the Code of Criminal

Procedure. However, from the evidence of the Officer

Incharge (P.W.9) it transpires that all these witnesses

were examined during investigation and had supported the

case of the prosecution.

6. P.W.1 Mithilesh Singh is the neighbour of the accused.

He has stated that he came to know about the incident as

his house is adjacent to the house of the accused and the

informant. He also went to the place of occurrence when the

police personnel came and saw the accused being arrested by

the police. He has denied that his statement was recorded

by the police, as such he was cross-examined by the

prosecution. P.W.1 when cross-examined by the prosecution

has denied that Jang Babadur was mentally disturbed or

insane at the time of occurrence. He has simply stated that

the villagers were apprehensive of Jang Bahadur’s behaviour

as he used to indulge in altercation with anyone for no

reason.

7. P.W.2 Birendra Kuamr has stated that at 12 noon he

came to know that Jang Bahadur was assaulting his wife

locking the room from inside and finally killed her. The

police came at the place of occurrence and arrested Jang

Bahadur in his presence. P.W.2 has further stated that he

saw the dead body of Bibha Devi at the place of occurrence.

This witness has also stated in his cross-examination that

villagers used to call the accused as “Pagala” and they

were apprehensive of his erratic and rude behaviour.
5

8. P.W.3 Nirmal is Singh the informant and own brother of

the accused. He has supported the case of the prosecution

as narrated in the first information report. He has stated

that in his presence, blood-stained Dao was seized by the

police and he put his signature on the seizure list. He has

also stated that his second brother resides with his family

at Assam. Jang Bahadur his youngest brother was earlier

residing at his in-laws house but after he killed his

brother-in-law he came back to his native village and

started residing there. P.W.3 has denied the suggestion

that at any point of time Jang Bahadur had suffered with

insanity. In paragraph 8 of his deposition, P.W.3 has

stated that no one has ever noticed any abnormal behaviour

of Jang Bahadur which can be of an insane person. In

paragraph 11 of his deposition, P.W.3 has stated that Jang

Bahadur was not doing anything for earning his livelihood

and his wife was maintaining him and his children from the

money she used to bring from her parent’s place. This part

of the deposition of P.W.3 indicates that money might have

been one of the reasons for killing Bibha Devi as Jang

Bahadur had no source of income for fulfilling his

requirements.

9. P.W.4 Girija Devi is the aunt of the accused. She has

tried to make out a defence for the accused in her

deposition. She has tried to bring the act of accused in

the category of an act done due to insanity. P.W.4 was

declared hostile but she has supported the part of the

prosecution case that the police arrested Jang Bahadur as

he killed his wife. P.W.4 has also stated that Jang Bahadur

was assaulting his wife and Usha Devi tried to restrain him

but he continued to assault Bibha Devi till she died.
6

P.W.4 has stated that on account of erratic behaviour the

villagers used to call Jang Bahadur “Pagala”.

10. P.W.5 Usha Devi is the sister-in-law of the accused

and wife of the informant Nirmal Singh (P.W.3). She was

also declared hostile as she denied that her statement was

recorded by the police during investigation. She was cross-

examined by the prosecution. P.W.5 has also tried to make a

case of insanity for the accused. In paragraph 5 of her

cross-examination, P.W.5 has stated that for the last five

years Jang Bahadur had developed insanity and his mental

condition was not normal.

11. P.W.6 Anil Singh has fully supported the case of the

prosecution. He has stated that he is related as brother to

the accused. P.W.6 has stated that when the police came at

the place of occurrence he also went there and saw that

Bihha Devi has been killed by Jang Bahadur inside the room.

He saw the dead body of Bibha Devi lying dead with several

injuries. He also witnessed Jang Bahadur coming out with

blood-stained Dao in his hand which he had used for

assaulting his wife and killed her.

12. P.W.7 Shankar Singh is the villager and co-sharer of

the accused. He has fully supported the case of the

prosecution. He has stated that information regarding the

incident was given to the police by P.W.3. Even after

arrival of the police Jang Bahadur was not opening the

door. He remained sitting with blood-stained Dao. In

paragraph 9 of his evidence, P.W.7 has specifically stated

that as per his knowledge, the accused has never suffered

with any attack of insanity.

13. Dr.Ashok Kumar Singh, P.W.8 had conducted post mortem

examination on the dead body of deceased Bibha Devi on
7

13.6.2001. P.W.8 had found the following ante mortem

injuries on the person of the deceased:-

(i) Incised wound 5″ x 3″ x trachea cut deep

over front of neck.

(i) Incised wound 5″ x 1 ½” x mandible cut deep

below right ear.

(ii) Incised wound 5″ x 1″ x muscle deep just

below injury no. (ii).

(iii) Incised wound 4″ x 2″ x vertebra cut deep

over nap of neck.


        (iv)      Incised wound 2" x 1", skin and subcutaneous

                  tissues       deep         over      right         shoulder,

                  posteriorily,

        (v)       Incised wound cutting almost whole of left

wrist including bones, except some portion

of skin and subcutaneous tissues

posteriorily.

(vi) Incised would 1″ x ½” x skin and

subcutaneous tissues deep over right wrist.

Injury nos. 1, 2 and 4, in the opinion of the doctor, were

dangerous to life in the ordinary course of nature. All the

injuries were found to be caused by sharp cutting weapon

like Katta or Dao.

14. P.W.9 Brajnandan Prasad was posted as Officer Incharge

of Bikramganj Police Station on the date of occurrence. He

has deposed that on 12.6.2001 at 1.30 P.M. he got a

telephonic message that at village Patrawal, one person has

killed his wife. He made station diary entry no.270 and

proceeded with the police party for village Patrawal. He

reached the village Patrawal at 2.30 P.M. and came at the

house of Nirmal Singh. He recorded fardbeyan of Nirmal
8

Singh. At that time Shiv Kumar Ram and Bablu Singh alias

Rakesh Ranjan were present. He also recorded the re-

statement of the informant, forced the accused to open the

door and on opening of the door, prepared inquest report.

He sent the dead body for post mortem examination of the

dead body. He found several injuries on the person of the

deceased. The blood was found fallen on the cot on the

floor. He also found the blood-stained Dao and prepared

seizure list. Statements of Mithilesh Singh P.W.1, Birendra

Kumar P.W.2, Girija Devi P.W.4 and Usha Devi P.W.5 were

recorded by him and all of them have narrated before him

that Jang Babadur had locked himself with his wife inside

the room where he repeatedly assaulted his wife and killed

her. P.W.5 had disclosed that Bibha Devi was shouting for

help but she could not be saved as the room was locked.

P.W.9 has stated that P.W.5 Usha Devi had stated before him

that she informed her husband P.W.3 and thereafter

telephonic message was given at the police station. P.W.9

arrested the accused after the room was opened. P.W.9 in

paragraph 25 of his deposition has stated that during

investigation he did not find any reason for sending the

accused for his mental treatment or consulting Psychiatrist

as there was no symptom of insanity. P.W.9 has stated that

he did not find that the accused had any remorse for his

brutal act. Further he has deposed that he also recorded

the statement of the accused after his arrest and produced

him before the court.

15. The evidence on record is sufficient to indicate that

Jang Bahadur killed his wife Bibha Devi by assaulting her

with Dao. The evidence of the witnesses does not show that

there was any provocation from the side of the deceased.
9

The accused has not also come out with any specific defence

that he has falsely been implicated or there was any enmity

with the informant or witnesses due to which a story has

been concocted by them. Only question which has been posed

for consideration is – insanity of the accused, at the time

of commission of the offence, so as to get the benefit of

Section 84 of the I.P.C.

16. Mrs. Bela Singh arguing on behalf of the appellant

has tried to bring the act of the accused within the

purview of Section 84 of the Indian Penal Code. Section 84

of the I.P.C. says that 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. Counsel for the appellant has submitted

that it is well settled that when a person is accused of

any offence, the burden of proving the existence of

circumstance bringing the accused within any of General

Exception in the Indian Penal Code is upon the accused. In

criminal cases burden of proof is always upon the

prosecution. When sufficient proof of the commission of a

crime has been produced by the prosecution connecting the

accused with the crime in that case the onus of

establishing innocence shifts to the accused when he pleads

existence of any circumstances to get benefit of Section 84

of I.P.C. For bringing any act of accused under the purview

of Section 84 of the I.P.C., the accused has to prove the

existence of circumstance within any special or general

exception. Section 105 of the Evidence Act provides that

onus for proving the existence of circumstance is upon the
10

accused and in case this onus is not discharged, the court

shall presume the absence of circumstance.

17. Counsel for the appellant has admitted that in fact,

plea of insanity in order to prove the existence of

circumstance and to bring the act of the accused within any

of the general exception of the Indian Penal Code was not

taken at the earliest stage of the proceeding. In order to

explain this laches on the part of the accused, it has been

submitted that from the evidence on record, it is evident

that behaviour of the accused was abnormal as he was called

as “Pagala” by the villagers. P.W.1, P.W.4 and P.W.5 all

have accepted that villagers were apprehensive of his

behaviour. P.W.5 has specifically stated that for the last

five years behaviour of Jang Bahadur was not normal. In

spite of sufficient knowledge the prosecution witnesses who

are family members did not take any step for defending the

accused when on account of insanity he had brutally killed

his wife for no reason. P.W.3 has admitted in his evidence

that he never tried to meet his brother after his arrest by

the police. All the family members, in fact, detached

themselves from the accused on account of his brutal act,

as such the court had to engage a lawyer for defending him.

This fact has sufficiently been indicated in the impugned

judgment and order sheet of the trial court. There was no

one to defend the case of Jang Bahadur Singh, as such an

Advocate was appointed by the court. The advocate appointed

by court also did not make any effort either to meet the

accused or for a dialogue with him. Due to these reasons,

defence of insanity could not be taken on his behalf at the

earliest stage of the proceeding. These are circumstances

which explain the laches on the part of the accused for not
11

proving the existence of circumstance of insanity though he

was actually suffering from insanity at the time of

occurrence.

18. Mrs. Bela Singh, counsel for the appellant, has placed

reliance on a decision reported in JT 2001 (10) SC 203

(Durga Domar Vrs. State of M.P.).In that decision also the

accused had not taken any plea of insanity before the trial

court. High Court also did not consider the case of accused

to give him benefit of Section 84 of the I.P.C. for his

brutal act of killing five innocent children. The accused

was awarded death sentence by the trial court and confirmed

by the High Court. Finally the Apex court for the first

time considered the evidence on record and came to the

conclusion that narration of the occurrence itself gives

impression that the accused had some mental derailment.

This was considered specially for the reason that there was

no motive attributed to the accused for such a ghastly

massacre of innocent children. The Apex Court called for a

report from the Psychiatrist of Mansik Aroghashala. The

report disclosed that accused suffers from Schizophrenia.

Considering the report, death sentence was altered to life

imprisonment maintaining the conviction. Counsel for the

appellant submits that the fact of the reported decision is

fully applicable to the facts of the present case. In this

case also there is no motive attributed to the accused for

his brutal act of killing his wife. The evidence is also

there to show that the village people did not treat him as

normal person. In the present case, in spite of all these

facts, the prosecution did not take any step for calling

for any medical report. Counsel for the appellant submitted

that in fact there should be re-trial of the accused, a
12

report be called for from the specialist/psychiatrist and

only on consideration of the evidence and report on record,

judgment and order be passed by the trial court.

19. Mr. Lala Kailash Bihari Prasad, counsel for the State,

submitted that there is no evidence on record to show that

the appellant suffered with any mental disorder at the time

of occurrence. Even the order sheet of the trial court and

the judgment of the trial court do not indicate that the

accused was suffering from any kind of insanity for which

act done by him can be categorized within general or

special exception in order to bring the case within the

purview of Section 84 of the I.P.C. In order to examine the

submissions advanced by counsel for the State and the

appellant, we also looked into the order sheet of the trial

court. On perusal of the order sheet of the trial court, it

is apparent that the accused always answered properly the

questions put by the trial court. After arrest when he was

presented before the Magistrate for the first time no sign

of abnormality was noticed by the court. He properly

answered the questions put to him. The Magistrate asked him

how he received his injury on his person and he replied

that the villagers and family members assaulted him. The

court had appointed an Advocate for him and he duly

accepted it. During the trial he filed an application

before the court for changing his lawyer. Such an act

cannot be expected from an insane person. His behaviour was

completely normal when his statement was being recorded

under Section 313 of the Cr.P.C. He properly understood the

circumstance put before him and replied the question. Not a

single chit of paper was brought before the trial court to

show that at any point of time he suffered with insanity as
13

there was no report from the jail informing his abnormal

behaviour. P.W.1 and P.W.3 have stated in specific terms

that the accused never suffered with any kind of insanity

in past. The evidence of the prosecution witnesses simply

shows that the accused is a very arrogant and ill-behaved

person having lust for money. He killed his brother-in-law

for property. Considering all these facts, we find that the

decision relied by the counsel for the appellant is not

applicable to the facts of the present case.

20. I would also like to refer paragraph 25 of the trial

court’s judgment which is as follows:-

“I find from the perusal of order dated
30-5-2002 that he was very much
conscious about his defence and wanted
his advocate changed but that prayer
was rejected by me on account of the
industry and labour invested by Shri
Kashyap in defending the accused. I
find from the perusal of the evidence
referred to me that there is nothing on
the record to indicate that the accused
indeed was mad or could have been mad
from before rather he appears to me a
very conscious and composed persons
attending to his trial regularly and
taking interest in it. I had the
occasion of talking to him on a couple
of occasions also and found no trait in
him which could characterize him
insane. In that light I find that
submission of the defence not appearing
to be acceptable.”

21. Since there is nothing on record to bring the act of

the accused under the purview of Section 84 of the I.P.C.,

as such the appellant is guilty of committing an offence of

culpable homicide amounting to murder punishable under

Section 302 of the I.P.C.

22. Considering the evidence of the prosecution witnesses

present on record, we have no other option than to affirm

the judgment of the trial court convicting the accused-
14

appellant under Section 302 of the Indian Penal Code and

awarding rigorous imprisonment for life. This appeal is,

accordingly, dismissed. Mrs. Bela Singh, Amicus Curiae, has

taken keen interest and made sincere effort to defend the

appellant. She should be paid her fee by the Patna High

Court Legal Aid Committee amounting to Rs.2500/- (Twenty

five hundred). The first order appointing to Mrs. Bela

Singh, Advocate as Amicus Curiae and the last page of the

order be handed over to her.

(Mridula Mishra, J.)

(Syed Md. Mahfooz Alam, J.)

Patna High Court, Patna
The 4th December, 2008
N.A.F.R. (B.T.)

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