JUDGMENT
H.H. Mehta, J.
1. The appellant has, by filing this appeal undersection 374(2) of the Code of Criminal Procedure, 1973(for short “Cr.P.C.), challenged legality and correctnessof judgment dated 31st January, 1992 rendered by thelearned Additional Sessions Judge, Mahesana in SessionsCase No. 116 of 1990 by which the appellant has beenconvicted under section 235(2), Cr.P.C. of the offencespunishable under section 302 of the Indian Penal Code andunder section 135 of the Bombay Police Act 1951 and issentenced to undergo Rigorous Imprisonment for life foran offence punishable under section 302, I.P.C. and toundergo Rigorous Imprisonment for a day and to pay a fineof Rs.10/- i/d. to undergo R.I. for two days for theoffence punishable under section 135 of the Bombay PoliceAct. The sentences inflicted for both the offences areordered to run concurrently.
2. The complainant Balvantji Nawaji is residing invillage Norata, Dist. Patan with his family members.Deceased victim Nagajo Moghaji was his uncle. His unclehad four sons out of which eldest son is Pratapji who isthe appellant before this Court. Other three sons andthe appellant were residing with his deceased uncle. Theappellant was not pursuing any activity or occupation forearning purpose and he was roaming in the village for nopurpose. It is alleged that on previous day of date ofincident, the deceased and his wife both had reprimandedthe appellant for his conduct of not doing work forearning purpose.
2.1. The incident took place on 4th May, 1990 in themorning at 11-15 a.m. The deceased had gone to attend aDiara (Meeting of elderly persons in which one GadhviBarot was to attend to sing folk-songs). The wife of thedeceased and other two sons of the deceased had gone, outof residence for their work. The deceased returned tohis house at about 11-00 a.m. and lied down on one cotwhich was kept for resting purpose. At that time,Jarukhaben sister of the appellant and daughter of thedeceased was cooking meals for lunch in a small hut,having one slopping roof. At that time, youngest sonHamirji was there in the house. The appellant was alsopresent in the house. At about 11-15 a.m., the appellantwent inside the house and brought one Vansi (anagricultural implement used for cutting cactus of whichone end is fitted with sickle). The complainant hasgiven its description in his deposition. Its descriptionis also given in Muddamal Pawati Exh.2. The appellantcame out side with the Vansi and inflicted two blows ofVansi on the deceased. One blow of Vansi landed on chinand other landed on forehead. This incident waswitnessed by Jarukhben. She shouted for help as a resultof which complainant Balvantji Nawaji and his wifeMenaben both rushed to the place of incident. At thattime, the appellant was present with the ‘Vansi’ in hishands. The deceased was bleeding from the wounds whichhe had sustained. The complainant pressed one clothwhich is being used for wearing around head, on the faceof the deceased. Meanwhile, as stated in the complaint,the appellant went away leaving the Vansi at the place ofincident. Thereafter, many persons from the villagegathered there. Wife of the deceased also came from thefield. The injured deceased was shifted by thecomplainant in the Tractor to General Hospital, Patan atabout 11-30 hrs. He was examined by Dr. Vikram AawaddanGadhavi in the hospital. Dr. Gadhavi also gaveinformation to P.S.O. of Patan Taluka Police Station.On the basis of the information, P.S.I. of Patan TalukaPolice Station made entry vide Entry No.12/90 in theStation Diary and he informed Second P.S.I. to go toGeneral Hospital. P.S.I. Mr. Naththekhan Muratkhanimmediately rushed to the General Hospital, Patan within15 minutes. At that time, injured was not conscious andit was not possible for him to record his complaint. Atthat time, the complainant was present in the hospital.He lodged the complaint to Mr. Naththekhan. Mr.Natthekhan sent that complaint to the Patan Taluka PoliceStation for registration of the offence. That complaintcame to be registered as CR.No. 49/90 for offencespunishable under Sec. 307, I.P.Code and Sec. 135 of theBombay Police Act. Thereafter, he handed over theinvestigation to P.S.I.. Shri Bhimjibhai GovindbhaiLimbachia. Before Mr. Naththekhan sent the complaintfor registration to Police Station, the Medical Officertransferred the deceased to Civil Hospital, Ahmedabad atabout 14.15 hrs. On taking charge of investigation, Mr.Bhimjibhai Govindbhai Limbachia first went to the villageNorata. There, he drew a panchnama of scene of offence.From that place, he seized blood stained Dhoti, bloodstained pieces of cotton cordage of net of the cot. Healso recorded statements of witnesses who were conversantwith the facts of the case. Thereafter on the next day,he went to Civil Hospital, Ahmedabad for recording thestatement of the injured, but it was found that theinjured was not in a conscious condition to give hisstatement, and therefore, he instructed Police HeadConstable who was present there to write a Yadi to theExecutive Magistrate for recording the dying declarationof injured. Then, on 6th March, 1990, he recorded thestatements of other witnesses. On the next day i.e. 7thMarch, 1990 the accused was arrested from the village.On 8th March, 1990, he seized blood stained ‘Paheran'(long shirt) of deceased under panchnama. From therecord of the case, it appears that the deceased who wasunder the medical treatment, in the Civil Hospital diedin the hospital at 21.55 hrs on 9th March, 1990. On orabout 15th March, 1990, Investigating Officer receivedthe information on telephone that the deceased had died,and therefore, on that day, a Yadi was written toJ.M.F.C. Patan to add an offence under Sec. 302, I.P.C.in the F.I.R. Thereafter the Investigating Officerreceived documents with regard to inquest panchnama aswell as Post Mortem Notes.On completion ofinvestigation, the Investigating Officer chargesheetedthe case against the appellant in the Court of thelearned J.M.F.C. Patan on 15th May, 1990.
4. One of the offences is punishable under section 302, I.P.C. which is exclusively triable by the Court ofSessions and hence on 26/6/1990, the learned J.M.F.C.committed the case to the Court of learned SessionsJudge, Mahesana for trial where it was numbered asSessions Case No.116 of 1990.
5. The learned Judge of the trial Court framedcharge at Ex.3 against accused. It was read over andexplained to the appellant to which the appellant pleadednot guilty to the charge and claimed to be tried. Theprosecution has examined following witnesses to prove itscase against the appellant:
(1) P.W.No.1 Balvant Navaji (complainant) at Ex.16.
(2) P.W.2 Dr. Vikram Aavaddan Gadhavi who examinedthe injured at the first point of time at Ex.18.
(3) P.W. 3, Jarukhben Nanjibhai -sister of theappellant who witnessed the incident, at Ex.20.
(4) P.W.4 Menaben Balvantji – the wife of thecomplainant at Ex.21.
(5) P.W.5 Dr. Nayankumar Natwarlal Parikh whoconducted autopsy on the dead body of thedeceased at Ex.22.
(6) P.W.6 Somaji Anadaji ( Panch witnesses forpanchnama of cot on which the deceased was lyingdown ) at Ex.25.
(7) P.W.7 Aanarji Rupaji (-second panch) foraforesaid panchnama Ex.26 as well as panchnama ofseizure of ‘Vansi’ produced by Jarukben at Ex.27.
(8) P.W.8, P.S.I.. Naththekhan Muratkhan Ex.32.(9) P.W.9, P.S.I.. Bhimjibhai Govindbhai Limbachia,Investigating Officer at Ex.34.
6. The prosecution has also produced followingdocumentary evidence in support of its case against theappellant:
(1) A Yadi of Police Station Officer of Patan TalukaPolice Station addressed to Second P.S.I.. atEx.6.
(2) A Yadi with which the complaint was sent byNaththekhan to P.S.O. for registration at Ex.7.
(3) Panchnama of arrest of the appellant -accused atEx.8.
(4) Forwarding letter with which incriminatingarticles were sent to Forensic Science Laboratoryat Ex.9.
(5) Receipt issued by responsible officer of ForensicScience Laboratory for having received thearticles sent at Ex.10.
(6) Report of P.S.I.. Mr M.M.Singh made to J.M.F.C.Pathan to add offence punishable under section 302, I.P.C. at Ex.11.
(7) Inquest panchnama Ex.12.
(8) Prescribed Form Exh.13 sent to Civil Surgeon withletter of a request to perform post mortem atEx.14.
(9) Report of Forensic Science Laboratory at Ex.15.
(10) Complaint at Ex.17.
(11) Injuries certificate issued by Dr. Gadhavi atEx.19.
(12) Post Mortem Notes Ex.23.
(13) Panchnama of scene of incident at Ex.26.
(14) Panchnama of blood stained cot and its net ofcotton cordage at Ex.27.
(15) Panchnama of seizure of Vansi produced by P.W.3Jarukhben at Exh. 29.
(16) Panchnama of seizure of ‘Paheran’ (a long shirt)produced by Bhupataji Becharji at Ex.30.
(17) A copy of notification published under section 37(1) of the Bombay Police Act 1951 prohibitingweapons etc. not to be held and carried inpublic place at Ex.35.
7. After recording of evidence of the prosecutionwitnesses was over, the circumstances appearing againstthe appellant were brought to the notice of and explainedto the appellant. For compliance of section 313, Cr.P.C.further statement of the appellant was recorded. Theappellant has not denied the case but has shown hisignorance about the incident. In reply to QuestionNo.11, the appellant stated that at the time of incident,he was not conscious. In reply to Question No.13, theappellant has stated that his father was not allowing himto do any work as he was suffering from desease ofepilepsy. The appellant submitted his written statementat Ex.41. He has stated, inter alia in Ex.41 that he wassuffering from mental disease since before the incidentand also after the incident, and was also taken to thehospital from the Jail for treatment for mentalimbalance. He has stated in Para 5 of his writtenstatement at Ex.41 that at the time of incident, he wasunder the effect of insanity. The appellant examined Dr.Vikrambhai Aawaddan Gadhavi as D.W. 1 at Ex.42 as hisdefence witness. This defence witness has produced aletter dated 5th May, 1990 written by the Jailor,Sub-Jail, Patan and addressed to Police Inspector, PatanCity Police Station, copy of which was forwarded with anendorsement to the Medical Officer, General Hospital,Patan. This letter is at Ex.43. It appears from thewritten statement Exh. 41 filed by the appellant that hehas pleaded defence available under section 84, I.P.C.
8. The learned Judge of the trial Court afterhearing the arguments of the learned Advocates for boththe parties and after appreciating evidence led by boththe parties, rendered judgment and convicted theappellant as stated earlier. Appellant has challengedthat judgment in this appeal.
9. Heard Ms. Banna Datta, learned Advocate for theappellant and Ms. Nandini Joshi, learned APP for therespondent-State. Ms. Banna Datta, the learned Advocatefor the appellant has taken us through the evidence onrecord. By placing reliance on evidence of Dr. Gadhavi,Ms. Banna Datta, the learned Advocate for the appellanthas argued that the injuries Nos. 1 and 2 noticed by Dr.Gadhavi were of such a nature that the injured would havesurvived, if proper treatment would have been given tohim, and therefore, the learned Judge of the trial Courtought not to have held that the deceased died a homicidaldeath. She has further argued that there were three eyewitnesses at the place of incident as alleged by theprosecution, out of which, two eye witnesses i.e. thecomplainant and his wife were not accepted to be eyewitnesses by the learned Judge of the trial Court, andtherefore, the prosecution case rests solely on eyewitness Jarukhben -a daughter of the deceased. She hasfurther argued that it would be hazardous and risky tobase conviction on the testimony of this type of sole eyewitness. She has argued that prosecution has notexamined material witness Hamirji youngest son of thedeceased, and therefore, adverse inference should bedrawn against prosecution, and therefore, accused begiven benefit of doubt.
10. By placing reliance on the observation of thelearned Judge of the trial Court in Para 9 of thejudgment, Ms. Banna Datta has argued that the learnedJudge of the trial Court has not appreciated the defenceput by the appellant in its correct and properperspective namely that at the time of the incident, hewas mentally imbalanced, and under the effect ofinsanity. She has further argued that this defence getscorroboration from the prosecution witnesses namely thecomplainant, his wife and eye witness Jarukhben. She hasemphatically argued that this defence of the appellant isproved by him as required to be proved under section 84 of the Indian Penal Code and that the learned Judge ofthe trial Court has grossly erred in not accepting hisdefence. For the defence pleaded by the appellant, Ms.Banna Datta has also placed reliance on the evidence ofDr. Gadhavi who is examined as defence witness at Ex.42and also a copy of letter at Ex.43 produced by Dr.Gadhavi. She has argued that the conviction of theappellant for the offence punishable under section 135 ofthe Bombay Police Act for contravention of notificationissued by the competent authority under section 37(1) ofthe Bombay Police Act is not according to law and itrequires to be set aside because the appellant was notfound with the Vansi in a public place. She has furtherargued that the learned Judge of the trial Court has notappreciated the evidence in its correct perspective andlooking to the facts of the case and evidence led by thedefence witness, the appeal deserves to be allowed andthe appellant should be given benefit of generalexception falling under section 84 of the Indian PenalCode and acquitted.
11. Ms. Nandini Joshi, learned APP for therespondent -State has supported the judgment of thelearned Judge of the trial Court. She has argued thatlooking to the defence taken by the appellant, thepresence of accused in the house at the time of incidentis not in dispute. She has further argued that thoughJarukhben is a sole eye witness to the occurrence, herevidence inspires confidence of the Court and the learnedJudge of the trial Court has rightly placed reliance onthe evidence of eye witness Jarukhben. She has furtherargued that her evidence stands corroborated byincriminating articles which were blood stained cot,’Paheran’ and pieces of cotton cordage of net of cot,because all these articles were found to have beenstained with blood by the Scientific Officer of theForensic Science Laboratory and the blood group of thedeceased matches with the blood group found onincriminating article ‘Vansi’ which was used in thecommission of the offence. She has further argued thatthe defence pleaded is not proved by the appellant, andthe appellant ought to have led satisfactory cogentevidence to prove his defence falling under section 84 ofthe I.P.Code. She has further argued that defence whichis pleaded by the appellant is an afterthought becauseafter recording of evidence of all the prosecutionwitnesses was over, the appellant’s advocate hadsubmitted an application Ex.37 and requested the trialCourt to recall seven witnesses to cross-examine on thepoint of mental condition of the appellant. According tolearned A.P.P. as per the order of the learned Judge ofthe trial Court, the prosecution witnesses Nos. 1,3 and4 were recalled and the appellant was given sufficientopportunity to cross-examine them on the point of mentalcondition of the appellant, but inspite of theopportunity given, the appellant has failed to prove hisdefence, as required by law. In support of herarguments, Ms. Nandini Joshi has cited (1) OYAMI AYATUvs. THE STATE OF MADHYA PRADESH, reported in AIR 1974 SC216; (2) SULAIMAN PILLAI vs. STATE OF KERALA, reportedin 1995 Supp.(3) SCC 695 and (3) T.N.LAKSHMAIAH vs.STATE OF KARNATAKA reported in (2002) 1 SCC 219. She hasfurther argued that the reasons assigned by the learnedJudge of the trial Court are cogent and plausible andthere is no reason to disagree with the findings arrivedat by the learned Judge of the trial Court, andtherefore, looking to the facts and circumstances of thecase, and evidence on record, appeal deserves to bedismissed.
12. We have considered the arguments advanced by thelearned Advocates for both the parties. We havereappreciated the evidence led by both the parties tocome to our own conclusions. The fact that deceased dieda homicidal death, is not in dispute. The learned Judgeof the trial Court has observed in Para 8 of his judgmentthat defence lawyer has not raised any dispute on thepoint that death of the deceased was an unnatural deathor that death was not a homicidal death. The complainantand Jarukhben both have deposed that after the incident,the injured Nagaji Moghaji was shifted to GeneralHospital, Patan. Dr. Vikram Gadhavi who is examined atEx.18 has deposed that he is serving as Medical Officerin Government Hospital, Patan since last three years andon 4th March, 1990 at about 12.50 hrs. Nagaji Moghajiwas brought to him without a Police Yadi. He hadexamined injuries sustained by said injured. He hasspecifically deposed that when he examined the injured,condition of injured was serious and semi-unconsciouswith fit of convulsions and was not in a fit condition tomake statement, and that he was bleeding from his mouth.He noticed following two injuries:
(1) Incised wound of 12 cm. x 2 cm. of size. bonedeep and bone cut over the chin of face shape Dand border right upper lip/lower lip from rigtside right ankle and mouth going in outward tothe left extending upto the lower track of shaftof left margin just below and lateral to leftankle of mouth. clinically fracture of mandible.Right lower molar teeth broken and otherloosened. Lower inciseor teeth also loosened.
(2) Incised wound over the frontal area of skullextending from right side of forehead and uptoleft side of forehead deep upto bone. Clinicallyfracture of skull base 2 cm. lateral to the leftside upto 3.00 cm. right side of forehead bonedeep (illegible) in shape.
The certificate given by Dr. Gadhavi at Ex.19 is dulyproved. He has further deposed that aforesaid injuriescould be possible by sharp cutting instrument. He wasshown ‘Vansi’ Muddamal Article No.3. and on seeing’Vansi’, he has opined that aforesaid injuries werepossible by this weapon. He has further deposed thataforesaid injuries were sufficient in the ordinary courseof nature to cause death of the deceased. Incross-examination, he has deposed that Injury No.1 can befatal but he has further opined that injured would havesurvived, if he was given proper treatment. For InjuryNo.2, he has also opined that he cannot say as to whetherinjured would have survived, if proper treatment wasgiven. As per his evidence, he had given primary medicaltreatment to the patient and on the very same day atabout 2.15 p.m. the injured was referred to CivilHospital, Ahmedabad. It is not in dispute that injuredwas admitted in Civil Hospital, Ahmedabad and he died atabout 21.15 hrs on 9th March, 1990, while he was undertreatment in Civil Hospital, Ahmedabad. Police HeadConstable who was on duty in the Hospital had held aninquest and prepared panchnama at Ex.12 on 10th March,1990. As per inquest panchnama, there were injuries onforehead and also on outer side of right thigh. It maybe noted that defence lawyer has admitted this documenti.e. Inquest panchnama Ex.12, and therefore, thisdocument has been admitted in evidence under section 294,Cr.P.C. Thus there is no dispute with regard to inquestpanchnama. In Pedda Narayan Vs. State of A.P. reportedin AIR 1975 SC 1252, the Hon’ble Supreme Court has held,by referring to section 174, Cr.P.C. that a perusal ofthis provision would clearly show that the object of theproceedings under section 174 is merely to ascertainwhether a person has died under suspicious circumstancesor it is an unnatural death and if so what is theapparent cause of the death. The inquest panchnama Ex.12reveals that the dead body was identified by thecomplainant and injuries were there on chin, forehead andouter side of left thigh, and therefore, it was not anatural death. Police Head Constable who was on duty inthe hospital had sent the dead body of the deceased witha letter Ex.14, to Civil Surgeon for performing postmortem along with prescribed Form Ex.13. Both thesedocuments were admitted by the appellant during trial.The prosecution has examined Dr. Nayankumar NatwerlalParikh Ex.22 who performed Post Mortem Examination on thedead body of the deceased.
13. Dr. Nayankumar Parikh deposed before the trialCourt that he was performing his duties as Tutor inForensic Science Department of Civil Hospital, Ahmedabad.On March 10, 1990 at about 9-00 a.m., the dead body ofthe deceased Nagajiji was received for autopsy and hestarted to perform its post mortem examination at 9-00a.m. and completed that work at 11-00 a.m. Onperforming post mortem on the dead body of the deceased,he noticed following external injuries which are statedin Para 17 of the Post Mortem Notes Ex.23:
-Surgical stitch wound on forehead trasversablefor 11.3 cm. Margine of wound contused.
-Palpable fracture of frontal bone present.
-Surgical stitch wound on chin going upward toleft upper angle of lip for 4.3 cm. Margincontused.
He also noticed the following internal injurieson the dead body of the deceased at the time ofperforming the post mortem examination, which were noteddown in Para 19 of the said Post Mortem Notes at Ex.23:
(1) Ecchymosis under the skull on frontal boneand further (illegible) on both parital bones inarea of 20 x 14 cm. size.
(2) A linear fracture of frontal and both paritalbone for 16.9 cms.
(3)Brain conjested subdural subarrachnoid.Hemmorrhage seen in different part.
As per his evidence, all the above injuries wereante-mortem and they were sufficient, in the ordinarycourse of nature, to cause death of the deceased. As perhis opinion, death was due to shock as a result ofinjuries sustained and its complications. His evidenceis corroborated by contemporaneous document viz. PostMortem Notes Ex.23. In cross-examination, he opined thatthe injury on chin was of such nature that if immediatetreatment would be available to the injured, injuredwould have survived. In spite of this opinion, he hascategorically denied the suggestion put by the defencelawyer that deceased would have survived, if immediatetreatment would have been given to the deceased. Thecontention taken by the learned Advocate for theappellant that looking to the medical evidence, casewould not fall under section 299, I.P.C. because opinionof the Doctor is such that the deceased would havesurvived if immediate treatment would have been given tohim cannot be upheld. Explanation II to Sec. 299,I.P.C. will be applicable to this case. Explanation IIspeaks that when death is caused by vital injury, aperson who caused such vital injury shall be deemed tohave caused the death, although by resorting to properremedy and skillful treatment, the death may have beenprevented, and therefore, the contention taken by Ms.Banna Datta is devoid of merits and therefore same isrejected. From medical evidence, it is proved thatunnatural death was a culpable homicidal death. Thelearned Judge of the trial Court has given finding onthis point on the basis of aforesaid medical evidence.That finding requires to be confirmed in view ofdiscussions made hereinabove, and acordingly it isupheld.
14. This takes us to decide as to who is the authorof the injuries sustained by the deceased.Theprosecution mainly relies on three eye witnesses. Ms.Banna Dutta has argued before us that these three eyewitnesses are P.W.1 Balvantji Navaji – the complainant,P.W.4 Menaben Balvantji -the wife of the complainant andP.W.3 Jarukhben Nagajibhai -the sister of the accused.
14.1 As per evidence of Balvantji Navaji, the deceasedwas his uncle. His house is situated in same lane inwhich the house of the deceased is situated. There isonly one house of his another uncle Jashwantji Meghaji,in between his house and the house of the deceased, andtherefore, he is also a close neighbour of the deceased.As per his evidence, incident took place at about 11.15a.m. He was present there in front of his house and atthat time, his wife Menaben P.W.4 was cooking meals forlunch. He has further deposed that deceased Nagaji waslying on cot in front of his house, and at that time,Jarukhben i.e. daughter of the deceased was also cookingmeals for lunch. He heard shouts of Jarukhben and onhearing shouts, he and his wife rushed to the house ofthe deceased and at that time, he saw that Nagaji was ina lying condition on the cot. According to his evidence,the appellant inflicted two blows of Vansi -one on chinand another on forehead. After reaching to the place ofincident, he separated the appellant and the deceased andthereafter he caught hold of the appellant so as to seethat no further blows might be inflicted by theappellant. According to his deposition, thereafter theappellant had run away. He saw that the deceased wasbleeding from the parts of body where he had sustainedinjuries. Therefore, he pressed the face with clothwhich is being worn around the head. So far as presenceof other persons is concerned, he has deposed that whenthe appellant had run away from the place, he himself,Jarukhben and Hamirji were only pesons present at thesite, and thereafter, other persons had gathered there.He has further deposed that at the time of incident,mother of the appellant was working in the field, andtherefore, one boy was sent for who called the mother ofthe appellant to the house of the deceased. According tohim, one tractor of Hamirbhai was called for and bytaking the deceased in the tractor, the deceased wasimmediately shifted to hospital at Patan. He has statedthat the deceased was admitted in the hospital at Patan,and Police had came there and recorded his complaint. Hehas proved his complaint which is at Ex.17 on the recordof the case. He has further deposed that when thedeceased was being shifted from Patan to Ahmedabad, hedid not accompany the deceased. He has further deposedthat after his return to village, Police had come tovillage and he had shown place of incident. This fact iscorroborated by Panchnama of scene of incident Exh.26 anddeposition of Investigating Officer Shri LimbachiaExh.34. According to him, his uncle Nagaji died aboutseven days after the incident. He has identified theVansi which is produced as Muddamal Article No.3 on therecord of the case. He has also deposed that clothesworn by deceased were stained with blood.
In cross-examination, he was confronted with thecomplaint on the point that he did not state in hiscomplaint that he heard the shouts of Jarukhben and onhearing shouts, he reached to the place of incident. Incross-examination, he has asserted the same case of theprosecution that Jarukhben shouted after Nagaji sustainedinjuries, meaning thereby the defence admits that herushed to the place of incident after hearing the shoutsof Jarukhben. His presence in the house is not disputed.From cross-examination, the presence of Jarukhben in herhouse and presence of Menaben in her house are also notdisputed. His evidence is corroborated by complaintwhich was registered at the earliest point of time.According to the prosecution, the incident took place atabout 11.15 hrs.According to the say of thecomplainant,the tractor arrived at about 11.30 hrs.Menaben has deposed that they reached the hospital at12.00 p.m. Dr. Vikram Gadhavi has deposed that at about12.50 hrs on 4th March, 1990, Nagaji was brought to himin the hospital without Police Yadi. Thus, within shortspan of time, the deceased was shifted to Patan CivilHospital. According to say of Dr. Vikram Gadhavi, heinformed the Police, as a result of which, the entry inStation Diary was made which is at Ex.6. Police StationOfficer of Patan Taluka Police Station instructed P.S.I.Naththekhan to immediately go to Civil Hospital.According, Natthekhan reached Hospital within 15 minutes.According to say of Naththeknan P.W.8, he reached thehospital at about 13.15 hrs. According to say of thecomplainant, immediately after reaching the hospital,Police recorded his complaint and therefore, there is nodelay in lodging the complaint. In Kahan Singh & othersVs. State of Haryana reported in 1973 (3) SCC 226, it isruled that when FIR was given soon after the occurrenceof incident, the possibility of putting up a falseversion is remote. Thus, there is no reason todisbelieve the complainant who lodged the complaint. Onreading the complaint, we find that name of the appellantis referred to in it. Presence of two eye witnesses isalso referred to in it. It is also narrated therein asto how the incident took place. The only fact not statedin his complaint is that Jarukhben shouted and on hearingthe shouts of Jarukhben, he rushed to the place ofincident. This is not significant, relevant and materialomission and therefore, the same cannot be treated ascontradiction. There is no reason to disbelieve thiswitness when he has given account of incident as per hiscomplaint.
15. The prosecution has examined Menaben at Ex.21.She is the wife of the complainant. She has deposed inher evidence that on the date of incident, she wascooking meals in the kitchen and her husband was takingmeals. She has further deposed that Jarukhben shoutedand therefore, she herself and her husband both rushedtowards the house of the deceased. She saw that deceasedwas inflicted with blows of ‘Vansi’ and at that time,present appellant was present there with ‘Vansi’ in hishands. She saw that one injury was inflicted on the chinand another was inflicted on forehead of the deceased.They i.e. she and her husband both caught hold of theappellant. Thereafter, the appellant ran away. Thus thefact that on hearing the shouts made by Jarukhben, both-the complainant and his wife had run towards the houseof the deceased, is proved by this witness also. WhenMenaben heard the shouts made by Jarukhben, certainly herhusband must have heard the shouts of Jarukhben.Omission with regard to hearing of shouts of Jarukhben,by the complainant is not material and significant oneand therefore, the same cannot be treated ascontradiction. The complainant and Menaben both had seenthe accused person with the Vansi in his hands at theplace of incident. This fact is not challenged incross-examination. This fact is relevant under Section 6 read with Section 11 of the Indian Evidence Act, becauseimmediately after the incident, these two persons hadrushed to the place of incident and seen the appellantwith the Vansi in his hand at the place of incident, andtherefore, this fact is relevant for consideration of theCourt. The learned Judge of the trial Court hasdiscussed the evidence of these two witnesses and hascome to the conclusion that they had not actually seenthe incident but had come on the spot after hearing theshouts made by Jarukhben. Evidence of both thesewitnesses get corroboration from evidence of Jarukhben.Hence their evidence is rightly relied on by the learnedtrial Judge.
16. In this case, most material evidence is ofJarukhben Nagajibhai who is examined at Ex.20. She hasdeposed that she is residing with her parents in villageNorata and has four brothers, out of them, elder isPratapji i.e. present appellant, and second is Paragji,whereas third is Sartan and youngest is Hamirji. She hadidentified the present appellant in the trial Court to beher brother. She has narrated entire incident in herdeposition. As per her evidence, incident took place atabout 11.15 a.m. Her father Nagaji had gone to attendDIARA at about 8-00 a.m. and returned to house at about11.00 a.m. She has stated that her father was lyingfacing sky on the cot in front of his house. Accordingto her evidence, at that time present appellant and heryounger brother Hamirji were present there in the house,whereas her mother and another brother Paragji had goneto the field and other brother Sartanji had gone toMahesana on that day. She has deposed that she wascooking meals for lunch in a hut having a singleslopping-roof, outside the house, and at that time, thepresent appellant went inside the house and brought Vansiand reached to the place where her father was lying onthe cot. She has specifically deposed that the appellantinflicted blows with Vansi on forehead and chin of herfather and she and her brother Hamirji both shouted andcaught hold of the appellant. She has further deposedthat her cousin brother Balvantji and sister-in-lawMenaben both came to the place of incident, andthereafter, the appellant had left the place by leavingthe said Vansi at the place of incident. She has furtherdeposed that her father was injured and he was bleedingand his clothes were stained with blood. According toher, thereafter, her father was shifted to CivilHospital, Patan and she did not go to Ahmedabad but shereturned to village and thereafter the police came to hervillage and police recorded her statement. She has alsodeposed that she produced ‘Vansi’ which was left byappellant at place, before police. This fact iscorroborated by Panchnama Exh.29 and also by evidence ofInvestigating Officer. She has identified Vansi which isproduced as Muddamal Article No.3 on the record of thecase. It was argued that no conviction can be based onevidence of sole witness. After all, in view of Sec. 134 of Evidence Act, quantity of evidence is not necessary tobase conviction. It is quality of evidence which mattersand evidence of one witness, if reliable and cogent couldbe taken into consideration for basing conviction. InMAKIAT SINGH vs. STATE OF PUNJAB, (1991) 4 SCC 341, itis held that the conviction could be made on the basis ofthe testimony of a solitary witness, and it is not thequantum of evidence but the quality and credibility ofthe witness that lends assurance to the Court foracceptance.
So far as motive part is concerned, this witnesshas deposed that the appellant was not doing any work orany occupation for earning purpose, and her father wasinsisting him to do some work. In cross-examination, shehas deposed that she was preparing meals at the placefrom where she could see her father lying on the Otta.This fact is clarified by the accused in hercross-examination. In cross -examination, her presenceat the place of incident is not disputed. She isconfronted with her police statement on the point thatshe did not state before the police that the appellanthad left the place leaving ‘Vansi’ in the house. Whenshe herself has produced Muddamal ‘Vansi’ under PanchnamaExh.29, this omission is not significant and relevant forthe purpose of appreciation of her evidence. A case hasbeen suggested to her and which has been denied by herthat she did not witness the incident and she was givinga false evidence. Except this, there is no othersuggestion put to her as to why this witness shoulddepose against the appellant falsely. For her, thedeceased and the appellant are of near and dearrelations. Deceased was her father, whereas theappellant is her elder brother. There is no reason forher to implicate the appellant in this serious case.There is no suggestion from the appellant side that someunknown person had come and inflicted injuries. Evidenceof Jarukhben is corroborated by evidence of complainantas well as Menaben. Her evidence stands corroborated bymedical evidence and investigating officer. She hadproduced muddamal ‘Vansi’ before the police and it wasseized under panchnama Ex.29. This very ‘Vansi’ was sentto the Forensic Science Laboratory along with Dhoti, and’Paheran’ of the deceased, as well as pieces of cottoncordage of net of cot for examination. According toreport of Forensic Science Laboratory which is producedat Ex.15, Senior Scientific Assistant of Forensic ScienceLaboratory had detected human blood on Dhoti and Paheranof the deceased. She also ascertained that there werestains of human blood on pieces of cotton cordage of netof cot. She ascertained group of blood as ‘B’ group.There is no explanation from the appellant as to how thisblood came on Vansi. Therefore, this evidence givescorroboration to the evidence of Jarukhben. Evidence ofJarukhben is found to be cogent, credible, truthful,consistent and natural one and it inspires confidence ofthe Court because it gets corroboration from otherreliable evidence on record. The learned trial Judge hadopportunity to notice the demeanour of these threewitnesses and therefore he has rightly placed reliance onevidence of these three witnesses. Thus, by readingevidence of this eye witness Jarukhben Nagjibhai coupledwith evidence of the complainant and his wife, theprosecution has proved beyond reasonable doubt that itwas nobody else but only the appellant who had inflictedthe injuries on the deceased and as a result of theinjuries inflicted by him, the deceased had died, andtherefore, the finding arrived at by the learned Judge ofthe trial Court on this point does not require to bedisturbed and the same is required to be upheld.
16. So far non-examination of Hamirji is concerned,it may be stated that had the prosecution examined him,he would have duplicated the evidence. Hence no adverseinference can be drawn. Prosecution closed its evidencevide Purshis Exh.36. Appellant’s advocate did not objectagainst dropping of other witnesses including Hamirji.Appellant could have examined Hamirji as his defencewitness. After all, he was his younger real brother.Hence contention of Ms. Dutta based on non-examinationof Hamirji is hereby negatived.
17. In this case, alternatively the appellant haspleaded defence of insanity. Ms. Dutta has argued thatlooking to evidence of the prosecution and also evidenceled by the appellant in his defence, case of theappellant falls under section 84 of I.P.Code. On a barereading of section 84, I.P.C. it is amply clear thatperson who wants to establish that an act done by him iscovered by section 84 of I.P.C., he must prove followingtwo ingredients;
(1) Accused was of unsound mind at the time ofcommission of the act; and
(2) By reason of unsoundness of mind, accused wasincapable of knowing nature of the act or that hewas doing what was either wrong or contrary tolaw.
It is true that burden to prove this his defenceis not similar to burden which is cast on the prosecutionto prove its case against accused. The burden on accusedcan not be equated with the burden of proof on theprosecution in criminal cases and could not be ratedhigher than a burden on a party to civil proceedingswherein a finding could be based on preponderance ofprobabilities.
18. To appreciate defence of the appellant, it isnecessary to know as to what type of case he has pleadedbefore the trial Court. In this case, while recordingfurther statement of the appellant under section 313,Cr.P.C. the appellant submitted his written statement atEx.41, wherein he has stated that because of mentaldisorder and mental imbalance of accused, he was beingsent to hospital. He has further stated that he is apatient of epilepsy and when he was receiving attack ofepilepsy, he was becoming unconscious and was not able tocontrol himself and at that time, he was not knowing asto what was being done by him. He has specificallystated that at the time of incident, he was under effectof illness of insanity. In support of his defence, theappellant has examined Dr. Vikrambhai Gadhavi at Ex.42as his defence witness. Dr. Gadhavi has deposed that onMay 5, 1990, he was on duty as Medical Officer in CivilHospital, Patan and on that day at about 2.15 p.m. hehad examined Thakor Pratapji Nagajiji (appellant). Theappellant was brought before him along with Yadi Ex.43.This witness has produced Yadi Ex.43. It was addressedby Jailor, Sub Jail, Patan to Police Inspector, PatanCity Police Station and copy was endorsed to MedicalOfficer, Civil Hospital, Patan. After examination of theappellant, he noted down his finding on back of Ex.43.He has proved his endorsement on reverse of Ex.43.Explaining his endorsement at Ex.43, he has deposed thatthe accused appeared to be suffering from mental disease.He recommended that for further treatment, he should bereferred to Civil Hospital, Mahesana. He has furtherdeposed that as he had transferred the accused to CivilHospital, Mahesana, he was not in a position to say as towhether in fact accused was suffering from any mentaldisease or not. For this, he has given reason that he isnot an expert on this point. He has further deposed thatone can have disease of epilepsy since his birth. Afurther query was put to this Doctor and he has explainedthat because it is referred to in Yadi that accused is apatient of epilepsy and also from appearance, he feltthat accused was suffering from mental disorder. Incross-examination by the learned APP who appeared in thetrial Court, he has deposed that at the time ofexamination, he did not find any symptom to come to aconclusion that accused was suffering from epilepsy. Hehas further deposed that when a patient receives anattack of epilepsy, normally his mouth would be closedand there would be froth from the mouth and patient wouldbecome unconscious and further that during the fit ofepilepsy, patient would not be able to do any otheractivity. This is the evidence with regard to plea ofepilepsy. The patient was examined on 5th May, 1990, andtherefore, the case of accused that on the date ofincident, the appellant was under fit of epilepsy, is notproved.
19. Ms. Nandini Joshi, learned APP has argued thatthis defence is an after-thought and it should not beaccepted because the accused submitted his applicationEx.37 requesting the trial Court to recall sevenwitnesses to allow him to put certain questions withregard to mental ailment of the appellant as anafterthought. On reappreciation of evidence, we findthat application Ex.37 was submitted after all theprosecution witnesses were examined and closing PurshisExh.36 was submitted by prosecution. If really, it was adefence of the accused, he would have put the defence atthe earliest point of time. The appellant has tried toget support for his defence from the evidence ofprosecution witnesses. The appellant was residing in ajoint family with his parents. Jarukhben was one of thefamily members in family of deceased. If really, theappellant was an insane or patient of insanity, Jarukhbenwas the best person to give history about the allegedmental disease of the appellant. A case was suggested toJarukhben and she has denied that when he returned fromPatan Hospital to her village, she found that theappellant was unconscious in the house. Anothersuggestion was put to her and she has denied that on orabout date of incident, accused was not doing any workand he was sitting in stunned condition. She hasexplained that the accused was able to move but was notdoing any work. She has further deposed that sometimes,accused was falling ill and at that time, accused waslying and sleeping. She has further deposed thatsometimes, it so happened that while walking, accused wasfalling and at that time, his mouth was remaining closedtightly. It appears that she supports the case of theappellant with regard to epilepsy. Now the questionwhich requires to be considered is as to whether on thedate of incident at 11.15 p.m. accused had suffered afit of epilepsy. For this fact, there is no evidence.For a moment, if it is believed that he is a patient ofepilepsy and on that day he had received attack ofepilepsy then according to the evidence of Doctor, hewould not be in a position to make any movement and wouldbecome unconscious. Thus, if he had received attack ofepilepsy, there would be no possibility that he wouldhave inflicted blows with ‘Vansi’ on his father, andtherefore, the defence is not believable. Thus what isrequired to be proved for bringing the case under section 84, I.P.Code is not proved on the basis by way of evenpreponderance of probabilities.In case of T.N.LAKSHMAIAH vs. STATE OF KARNATAKA, reported in (2002) 1SCC 219, the Hon’ble Supreme Court has explained thescope and ambit of section 84 of I.P.Code. Sec. 84, I.P.C. forms part of Chapter IV dealing with generalexceptions. The principle embodied in the Chapter isbased upon the maxim actus non facit reum, nisi mens sitrea i.e. an act is not criminal unless there is criminalintent. Every man is presumed to be sane and to possessa sufficient degree of reason to be responsible for hisacts unless the contrary is proved. Mere ipse dixit ofthe accused is not enough for availing of the benefit ofthe exceptions under Chapter IV. Under the Evidence Act,the onus of proving any of the exceptions mentioned inthe Chapter lies on the accused though the requisitestandard of proof is not the same as expected from theprosecution. It is sufficient if an accused is able tobring his case within the ambit of any of the generalexceptions by the standard of preponderance ofprobabilities, as a result of which he may succeed notbecause that he proves his case to the hilt but becausethe version given by him casts a doubt on the prosecutioncase. The burden of proof that the mental condition ofthe accused was, at the crucial point of time, such as isdescribed by Section 84, lies on the accused who claimsthe benefit of this exemption vide Section 105 of theEvidence Act [Illustration (a)].
It is further ruled that in a case where theexception under section 84, I.P.C. is claimed, the Courthas to consider whether, at the time of commission of theoffence, the accused, by reason of unsoundness of mind,was incapable of knowing the nature of the act or that heis doing what is either wrong or contrary to law. It isfurther held that the entire conduct of the accused, fromthe time of the commission of the offence up to the timeof the sessions proceedings commenced, is relevant forthe purpose of ascertaining as to whether plea raised wasgenuine, bonafide or an afterthought.
20. Here in this case, incident took place on March4, 1990 at 11.15 a.m. As per evidence of Jarukhben, theappellant left the place leaving ‘Vansi’ there and there.Thereafter the accused could not be traced out. TheInvestigating Officer Mr. Bhimji Limbachia Ex. 34 inhis deposition has stated that on March 4, 1990 he wasperforming his duties as P.S.I. Patan Police Station,and the complaint of Balvantji was given to him forinvestigation by P.S.O. vide order Ex.7 and he took overthat investigation and on that day, he went to villageNorata. According to the police officer, the complainantwas present and had shown the place of incident for whicha panchnama of scene of offence was drawn Ex.26. He hasspecifically deposed that on that day, inquiry was madeabout the accused but he was not available. From record,it appears that accused could be arrested at 20.30 hrs.on March 7, 1990. Thus, accused remained absconding forthree days. If really, he was insane, he would not haverun away from the place and would not have absconded forthree days. This conduct of the accused should beconsidered. Thus from the evidence, it is clear thatwhatever defence is pleaded by the accused is not provedby the appellant. The learned Judge of the trial Courthas rightly not accepted the plea of insanity put up bythe appellant. The learned Judge of the trial Court hasassigned cogent and plausible reasons for arriving at hisdecision with regard to rejection of defence of theaccused. We are in complete agreement with the reasonsassigned by the learned Judge of the trial Court. Thelearned Advocate for the appellant is unable to convinceus for dislodging the reasons given by the learned Judgeof the trial Court.
21. Thus, this case is proved against the accused foroffence punishable under section 302, I.P.C. and thelearned Judge of the trial Court has inflicted minimumsentence prescribed under section 302, I.P.C. We do notfind any reason to disagree with the final conclusionsarrived at by the learned Judge of the trial Court.
22. Ms. Banna Dutta has argued that conviction ofthe appellant with respect to offence punishable undersection 135 of the Bombay Police Act for contravention ofprohibitory order under notification issued under section 37(1) of the Bombay Police Act, is bad in law. Theprosecution has produced a notification Ex.35 issuedunder section 37(1) of the Bombay Police Act issued bythe District Magistrate, Mahesana by which a prohibitoryorder was issued. The residents of Mahesana Districtwere prevented from holding and carrying articles listedin Ex.35 during the period from 13th February, 1990 to12th March, 1990 in a public place. By thisnotification, residents of Mahesana District wereprevented from holding and carrying articles includingweapons, sticks, inflammable articles in the publicplace.
23. Here in this case, looking to the facts of thecase, ‘Vansi’ was there inside the house of the deceasedand appellant took out that ‘Vansi’ from the said houseand used that ‘Vansi’ in committing the murder of thedeceased in the house and therefore, it cannot be saidthat the appellant was found in public place by holdingand carrying ‘Vansi’ which was prohibited by the DistrictMagistrate, Mahesana. Therefore, in no circumstance, itcan be said that there was a breach of the notificationby him. Under the circumstances, it cannot be said thatthe accused has committed offence punishable undersection 135 of the Bombay Police Act. The learned Judgeof the trial Court has grossly erred in convicting theaccused for offence punishable under section 135 of theBombay Police Act, and therefore, the said conviction isrequired to be set aside.
24. In view of what is stated hereinabove, thisappeal deserves to be partly allowed and the same ispartly allowed accordingly. The appeal, so far as itrelates to conviction for the offence punishable undersection 302 of the Indian Penal Code, is dismissed. Theappeal, so far as it relates to conviction of theappellant for the offence punishable under section 135 ofthe Bombay Police Act, is allowed, and therefore, theorder of conviction and sentence, so far as it relates tothe offence punishable under section 135 of the BombayPolice Act, is set aside. Rest of the order standsconfirmed. Muddamal articles be destroyed/disposed of asper the directions given by the learned Judge of thetrial Court in the impugned judgment.