JUDGMENT
Hari Lal Agrawal and Sia Saran Sinha, JJ.
1. The two appellants, namely, Surju Marandi and Rijha Marandi, related as brothers, were tried by the 2nd Additional Sessions Judge, Bhagalpur for committing the murder of their own youngest brother Sukhu Marandi aged about 12 years only, have been convicted under Section 302 of the Indian Penal Code and each of them has been sentenced to rigorous imprisonment for life. They have filed the present appeal from the jail.
2. The occurrence giving rise to this appeal is said to have taken place in the night of 14/15th of March, 1968 in the house of the appellants in village Chatarhan in the district of Bhagalpur. Mosst; Nuni Hunsda (P. W. 3), mother of the appellants, lodged a report at the Belhar Police station on 15-3-1968 at about 10 PM. stating that her eldest son namely, Surju Marandi (appellant no 1) was suffering from insanity (Dimag Kuchh Kharab Ho Gaya Tha) since last 10 and 12 days and on that account she and other family members including the wives of appellants and the deceased started residing in the house of Karma Manjhi (P. W. 2), a co-villager and had given up residing in their own house Rijha Marandi (appellant no.) her second son, was working in Bakula Colliery. He was sent for by her by a telegram and had come to the village only two days before the occurrence.
3. On the 14th March, 1968 appellant No. 2 came to her and asked Sukho to take the buffaloes to their own house and tie them there saying that appellant Surju would not do any harm. Thereupon Sukho went there with the buffaloes and remained there in the night along with the two appellants. In the next morning i.e. 15th March, 1968 at about 6 A.M.P.W. 3 went to her house to call her three sons but found that the door of the house was bolted from inside and in spite of her repeated and loud calls, she did not receive any response from inside the house. she kept waiting till about 10 A M but having failed to receive any response, she went to the neighbours and told them of the above facts. The neighbours, however, suggested her to go to the police and accordingly she went to Karnmatarn and told the matter to P W. 19 Lagan Mehra, a constable, who met her. She returned to her village at about A P. M. along with him. Some other prosecution witnesses, namely Lachman Hasda (P. W. 1) Tejo Modi (P. W. 4), Chhotan Murandi (P. W. 5) Jaipla Manjhi (P. W. 7), Jesai Marandi (P. W. 10) and Mitan Pandit (p. w. 14) also came there and then both the appellants opened the door and came out of the room of the house. On being asked about Sukho, appellant no 1 is said to have stated that he had killed, him. It was further stated that he also pointed out a gunny bag containing the dead body of Sukhu tied with a rope in the ceiling of the room. P. W. 19 and other prosecution witnesses saw the dead body. Some blood was also found in the Court-yard which was washed with cow-dung P. W. 19 thereupon tied the appellant and sent their mother (P W 3) along with P. W. to the police station for reporting the matter She then lodged the first information report (Ext. 2) before the Belhar police-alleging that the appellants had killed her son Sukho Marandi. Both the appellants were sent up for trial and ultimately convicted as already said above.
4. The investigation in this case was conducted by Abdul Razaque, the officer-in-charge of Belhar police-station (P. W. 17) who had reached the place of occurrence at about 8 A.M. on 16th March, 1968, having received the report of the occurrence from P. W. 3 P. W. 17 also found some blood marks in the angan and also recovered one Farsa, one Gaita and one Rukhani from the house which were said to contain some blood marks. He also held inquest on the dead body of Sukhu and thereafter sent it to Banka hospital for post mortem examination. The post mortem examination was held by Dr. B. K Jha(P. W. 15) on 17-3-1968 at about 8-30 P. M. in the Banka Sub-divisional Hospital and he found the following anti mortem injuries on the dead body:
1. One lacerated injury on head affecting the parietals and occipitals in an area of 6″ x4″ with communitated fractures of parietals and occipitals, with prolapsed brain matter.
2. One clean-cut incised wound 4″x2 1/4″ x 1 1/2″ on neck.
3. One clean cut incised wound 3″ xl 1/2″ x joint cavity deep with fracture, dislocation of distal end of humerus on right elbow joint, centrally with prolapse of lower end of humerus through the wound. It was a compound fracture dislocation.
4. One clean cut incised wound 2″xl” joint cavity deep on right wrist with fracture. It was also a compound fracture dislocation.
5. One clean cut incised wound 2 l/2″x 1″ joint cavity deep on left elbow joint and of left humerus. The wound, was also a compound fracture with dislocation.
6. A simple fracture, both radius and ulna, of left forearm.
7. One clean cut incised wound 3″ xl” joint cavity deep on right ankle posteriori.
8. One clean cut incised wound 2″ xl” joint cavity deep on left ankle posterior.
9. One clean cut incised wound 6 1/2″ x2 1/2″ abdominal cavity deep from right hypochondrium to umbilicus, with prolapsed stomach, small intestine, and large intestine with rent in small intestine leading to contamination of abdominal cavity and collection of blood clots.
According to his opinion injury Nos. 1 and 6 were caused by hard blunt weapon, such as iron rod and the rest of the injuries were caused by sharp cutting weapon, such as pharsa and rukhani, and the death was caused due to shock and haemorrhage, as a result of the above mentioned multiple injuries which were sufficient in ordinary course to cause death. He fixed the time of death within 72 hours from the time of his examination.
5. The defence of the appellants was the plea of innocence and false implication. The further plea of appellant No. I was that he was insane at the time of the occurrence and, therefore, in any view of the matter, he could not be convicted. Appellant No. 2 further pleaded as his defence that he was not in the village when the deceased was killed and had come to the village only on the day following the night of the occurrence.
6. From the facts stated, above, it is obvious that there is no eye witness of the occurrence in this case and both the appellants have been convicted by the trial court only on the basis of some circumstances appearing against them. The circumstances which were relied upon by the trial court and were referred to before us are these:
1. Appellant No. 2 had gone to the house of P. W. 2 and had asked Sukho (the deceased) to come to their own house with the buffaloes and the deceased had gone there with the buffaloes and had slept along with the appellants in the same room on the fateful night;
2. When the mother (P. W. 3) went in the morning to the house, it was found bolted from inside and was not opened by the appellants for several hours inspite of repeated and loud calls until the police and some other neighbours assembled ;
3. When ultimately appellant No. 1 opened the door, both the appellants came out of the house and when asked, appellant No. 1 is said to have admitted that he had killed Sukho and he had pointed out the dead body of the deceased, which was found hanging from the ceiling of the room in a gunny bag; and,
4. Some blood marks were also found in the Angan of the house.
It was contended on behalf of the prosecution that these circumstances were sufficient to estalish the guilt of the appellants.
7. Mrs. Sabitri Mishra, who appeared well prepared as amicus curiae for the appellants, contended that the aforesaid circumstances had neither been established nor they were such as could lead to the conclusion that the murder of the deceased was committed by any of the appellants. She further contended that appellant No. 1 was insane and was, accordingly, entitled to the benefit of the exception provided under Section 84 of the Indian Penal Code. She also contended that there was no motive for commission of the offence by appellant No. 2. Lastly, she contended that the trial was vitiated as the procedure laid down under Section 465 of the old code of Criminal Procedure was not followed by the learned Additional Sessions Judge.
8. In all, nineteen witnesses were examined in this case on behalf of the prosecution,. Out of them P. Ws. 1, 2, 5, 6, 7, 9, 10, 12 and 13 are the residents of the village and they had seen the appellants coming out of the room of the house in which they were sleeping, after the arrival of the constable (P. W. 19) in the after-noon.
9. On the own showing of the prosecution, appellant No. 2 was working in a colliery and a telegram was sent to him by his mother to come to the village as the appellant No. 1 had become insane and on receipt of the said telegram he is said to have come to his village two days before the occurrence. The deceased was a young boy aged about 12 years and was reading in a Mission school in another village Basmata and he is said to have come to the village three days before the alleged occurrence.
As regards the first circumstances that appellant No. 2 had gone to her mother (P. W. 3), then living in the house of P. W. 2, in the evening of the 14th March, 1968, there is merely the statement to this effect in the first information report (Ext. 2). In her evidence before the committing court, she did not make any such statement. There she only stated that the appellant No. 2 and the deceased had also come before the occurrence and in the night of the occurrence, all her three sons had slept in a room of her house. In her evidence in the trial court, however, she did not support the above statement, and stated that she could not say as to at what time the deceased had come from village Basmata in the night of occurrence. She also contradicted her earlier statement and stated that appellant No. 2 had come to his village at 8 A. M. on 15th March, 1968 and that he was not in the village in the night of the occurrence.
10. All the prosecution witnesses mentioned above have admitted that appellant No. 1 had become insane, so much so that Chhotan Marandi (P. W. 5), an uncle of the appellants, admitted that appellant No. 1 had become insane since about 4-5 days prior to the occurrence and he used to beat anyone who went near him. Koila Marandi (P. W. 12) stated that appellant No. 1 was kept under fetters at the relevant time, a fact which is also admitted by P. W. 3. The village chaukidar (P. W. 8) also stated that appellant No. 1 used to assault the female members of the house and as such they had been sleeping in the house of another person of the village. The fact of insanity of appellant No. 1 has been admitted by each one of the prosecution witnesses mentioned above, so much so that this fact has been stated by P. W. 3 in her fard-beyan itself. The degree of his insanity can be well imagined from the fact that none of the female members were prepared to live along with him, not even his wife, and they had shifted to the house of a neighbour (P. W. 2). Appellant No. 2 was sent for by P. W. 3 by a telegram only on this account. No prosecution witness had seen the deceased or appellant No. 2 together or going inside the house, much less appellant No. 2 taking the deceased with him in the preceding evening. None of the prosecution witnesses had seen appellant No. 2 in the village until the door of the room was opened on the next day in their presence In view of such, state of evidence in our opinion, the prosecution has not established that appellant No. 2 was even present in the village and had slept in the same house from which the dead body of Sukho was recovered.
11. The fact that the appellants had come out of the room and even assuming that they were also present when Sukho was killed, would not necessarily establish that it was appellant No. 2 who committed the offence. B. W. 3, the mother, in her evidence at the trial stated that appellant No. 2 was not present at that time in the village and had come only the following morning. Even assuming that being the mother, detracted from her earlier statement that he had already came to the village, in the absence of any other incriminating circumstance appearing against him, particularly when there could he no possible motive for him to kill his own younger brother, so young and innocent, especially when the mother (P. W. 3) says in her evidence that the relation between all the three brothers was cordial, we do not feel satisfied that this circumstance, even if accepted, unerringly points towards the guilt of appellant No. 2 as the person responsible for the murder of the deceased.
12. The Supreme Court quoted with approval the following observations by Baron Alderson in Reg v. Hedge (1838) 2 Lewin 227. in two cases, namely, Palvinder Kaur v. The State of Punjab .and Hamumant Govind Nargundkar and Anr. v. State of Madhya Pradesh .:
The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole ; and the more ingenious the mind of the individual, the more likely was it, considering such matters to over reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
In A.I.R. 1952 Supreme Court 343, the Supreme court observed that in dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases there was always the danger that conjectures or suspicion may take place of legal proof, and, therefore, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature any tendency and they should be such as to exclude every hypothesis but the one proposed to proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
The court, therefore, should safeguard itself against the danger of basing its conclusion on suspicions however, strong they may be.
13. The aforesaid view has been reiterated by the Supreme Court successively in a large number of later decisions. In the case of Eradu and Ors. v. State of Hyderabad , four persons were charged for abducting one Muneem Lachiah and killing him thereafter due to enmity, by hitting him with stick and spear. There was no eye-witness in the case, but the accused were convicted only on circumstantial evidence. There was evidence that the four accused had gone to the house of the deceased in the evening of the day in question and accosted him, asking to accompany them to a well, a fact duly established. The deceased was found hanging in the backyard of his house. There was no evidence at all of any further movement of the accused nor there was anything to connect them with the crime, except the recoveries made at their instance, as evidenced by the various documents. The motive alleged against the accused was not satisfactorily established by the prosecution. The Supreme court set aside the judgment of conviction recorded by the High Court and the trial court on the ground that these circumstances were not complete, without anything more to connect the accused with the crime.
14. The circumstance that appellant No. 2 remained in the house along with appellant No. 1 where the murder of the deceased is said to have taken place and opened the door only after several hours of insistence, may have various explanation. He might be sleeping in another room of the house and be not even aware of the death which might have been caused by the insane appellant No. 1 ? He might himself be frightened on seeing the death of his younger brother or be himself kept under terror by appellant No. 1 ? The conduct of the appellants that they did not attempt to run away at any time, either before the arrival of their mother, or even subsequently, when she went away to Karnataka and the house remained unguarded, is also an important circumstance not consistent with the hypothesis of the guilt of the appellants. No human blood was found by the Serologist in his reports (Exts. 8 and 8/1) on the three weapons which were recovered from the house and seized by the police which are said to be used for commission of the offence. In our opinion, therefore the chain of evidence is not so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellants.
15. The Supreme Court in Sarwan Singh Rattan Singh v. State of Punjab . has observed that there may be an element of truth in the prosecution story against the accused, but between “may be true” and “must be true” there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused pan be convicted.
16. We, accordingly, feel inclined to hold in agreement with the contention of the learned Counsel for the appellants that the prosecution has not established the entire chain of evidence to sustain the charge against the appellants beyond all reasonable doubt.
17. So far as the case of a appellant No. I is concerned, there is yet another factor in his favour. The consistent evidence of all the prosecution witnesses is that be was insane at the time of the occurrence and his mental condition was upset to such an extent that none of the members of the family was prepared to five with him and he had to be left all alone in the house keeping him under fetters. In Our opinion, therefore, he is entitled to the benefit of the provision of Section 84 of the Indian Penal Code. Against this appellant, however, another positive circumstance appears which cannot be applied against appellant No. 2, and that is that he was present in the house all through in the night from which the dead body of the deceased was recovered. Even assuming that this circumstance may be considered against him, he is entitled to the exception provided under Section 84 of the Indian Penal Code. Section 84 of the Indian Penal Code provides that an act of a person of unsound mind who, at the time of doing it, by reason of unsoundness of his mind, is incapable of knowing the nature of the act, is not an offence. The trial court has rejected this plea on the sole ground of burden of proof and has relied upon Section 105 of the Evidence Act. It is; no doubt, true that this section provides the prosecution with an additional support, namely, that the prosecution case would be judged on the presumption that no except on existed. The trial court has, however, held that this presumption has not been rebutted in this case. On appraisal of the evidence, indicated above, we are not prepared to accept this view. As held by this court in Kamla Singh v. The State . that the presumption under Section 105 is rebuttable, if any fact sufficient to rebut the presumption has been proved by the defence, and the moment that presumption is rebutted by the defence and the court is brought to a point where it becomes doubtful of the fact or when it cannot positively be held that the prisoner was not then of unsound mind and was capable of knowing the nature of the act alleged against him, the onus under Section 105 has to be taken as discharged, for, by reason of the neutralisation of the force of presumption, the prosecution is thrown back to its original position where it has to discharge its onus beyond reasonable doubt. The defence, therefore, has not to prove affirmatively beyond reasonable doubt that the person was of unsound mind and that by reason of unsoundness of mind was incapable of knowing the nature of the act. In other words, the defence has only to demolish the aforesaid presumption laid down against the accused under Section 105, and not to prove beyond reasonable doubt, the opposite of that presumption.
18. The same view has been taken by the Supreme court in Debyabhat Chhaganbhai Thakkar v. State of Gujarat . where it was observed that when a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing that was either wrong of contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime.
19. The consistent evidence of the prosecution witnesses right from the statement recorded by the Police is that appellant No. 1 was of unsound mind at the time of the occurrence, so much so that none of the family members dared even to live with him and had shifted to another house. It is the case of the prosecution itself that for that purpose, in order to look after appellant No. 1, a telegram was sent by P. W. 3, the mother, to appellant No. 2 to come back to his village. The preceding circumstances, to the occurrence are completely in favour of appellant No. 1. The attending and the circumstances that have followed also in our opinion, support the plea of insanity. We have seen that appellant No. 1 did not attempt to run away after committing the alleged crime when he had sufficient and convenient opportunity to do so, he did not make any attempt even thereafter and conveniently pointed out the dead body. On these materials we feel satisfied that even assuming that the offence was committed by him, he is protected under Section 84 of the Indian Penal Code, and he being a person of unsound mind, his act would not amount to an offence under the law.
20. Now remains for consideration the last contention advanced by Mrs. Mishra that the trial was vitiated on account of non-compliance of the procedure laid down under Section 465 of the Code of Criminal Procedure.
We do hot find any substance in this argument. Section 465 applies to a person who appears to the court at his. trial to be of unsound mind and consequently incapable of making his defence, and not to a person who is not so at the time of the trial but suffered such an incapacity at the time of commission of the offence. The distinction between incapacity at the time of doing the act charged and incapacity at the time of trial, therefore, is apparent while both are induced by unsoundness of mind, the former is substantive which excludes the offender under Section 84 of the Indian Penal Code, the latter only affects the procedure and merely postpones the trial which must be resumed when the incapacity disappears on a future date. As a preliminary condition to the applicability of Section 465, it must appear to the court before which an accused is brought that he is of unsound mind and, consequently incapable of making his defence. If no such abnormality is disclosed the court should proceed with the trial and no action under Sections 464 and 465 of the Code of Criminal Procedure is called for. No such plea was advanced on behalf of appellant No. 1 at the time of the trial and there is no material to suggest that he appeared to be of unsound mind to the trial court when the trial had started.
21. From the above discussions we come to the conclusion that the prosecution has failed to bring home the charge against the appellants or any one of them beyond all reasonable doubt for killing Sukho Morandi and inasmuch as we have held that appellant No. 1 was insane at the time of the alleged offence, his case comes under the exception of Section 84 of Indian Penal Code and he is entitled to an acquittal on that account. So far as appellant No. 2 is concerned, for the reasons discussed above, we would give him the benefit of doubt.
22. In the result, the appeal succeeds and the judgment and order of the trial court is set aside. The appellants are directed to be set at liberty at once, if not otherwise required.