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.
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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
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For the Appellant: Mrs.Bela Singh, Advocate
(Amicus Curiae)
For the State : Mr.Lala Kailash Bihar Prasad,Sr.Advocate
(Addl. P.P.)
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.)
