JUDGMENT
P.K. Tripathy, J.
1. This appeal has been preferred challenging to the judgment and conviction order under Section 302, I.P.C. delivered by the Sessions Judge, Balasore on 15.7.1992 in Sessions Trial No. 141 of ,1991.
2. The Criminal Appeal stands disposed of by modifying the sentence of imprisonment for life for the offence under Section 302, I.P.C. to imprisonment for a period of ten years for the offence under Section 304, I.P.C. for the reasons indicated below.
3. Accused/appellant being booked for matricide, was charged for the offence under Section 302, I.P.C. on the following facts projected by the prosecution.
Appellant is the youngest son of Bhikari Behera (P.W.No.5) and Mushimani Behera (deceased). Appellant has four elder brothers and three sisters. All of them are married. The brothers are serving outside the native village i.e., village Tentulia under Berhampur Police Station in the district of Balasore. By the date of occurrence, i.e. 5.7.1991 the deceased was of the age of early seventy. Appellant did to read well and read up to middle standard and remained with the parents in the village being their most affectionate child. By the date of occurrence Appellant was above the age of 26 years. His marriage was arranged at Baripada after his approval of the bride. On 5.7.1991 the bridegroom’s party was to proceed to the residence of the bride at Baripada. After giving a bath and new clothing to the appellant when food was served to him, he refused to eat. Around 11 A.M. the mother (the deceased) came and persuaded the appellant in the bedroom of his eldest brother (Rabi Narayan Behera – P.W. No. 7). The wife of P.W. No. 7 was also in that room at that time. When the appellant refused to eat and expressed before his mother not to marry that bride and not to proceed on bridegroom’s party, looking at his conduct and the mannerism the wife of P.W. No. 7 came out of that room followed by bolting the door from inside by the appellant. The family members, relatives and the guests who had gathered for the marriage ceremony, made their efforts to bring him out. For that purpose they also attempted to remove the window and to break open the door. The deceased responded from inside the room that she was not allowed by the appellant to unbolt the door from in side. In this process the tension and commotion went on till afternoon and at about 4 P.M. when the mother tried to unbolt the door from inside, appellant started pelting and throwing glass bottles, mosquito-net stand, etc. hard but blunt objects at his mother (deceased). According to the post mortem report, because of such conduct of the appellant, the deceased sustained ten injuries, all of which were either lacerated wound or bruise. The doctor (P.W. No. 10), who conducted autopsy, has mentioned in the post mortem report (Ext. 10) as well as in his deposition that there was fracture of frontal bone because of the lacerated injury of the dimension of 4 cm x 2 cm. x 0.5 cm. Situated transversally. There was also fracture of fifth meta-corporal bone on the let hand palm. The other lacerated injuries were on the forehead, occipital region, left ear, right cheek, left wrist joint and right mandible. P.W.No.7 and others could succeed in breaking open the door and then instead of running away from the house, appellant went and concealed himself, in the room meant for granary (store room). All the persons brought the deceased to the courtyard and nursed her, but she succumbed. Thereafter F.I.R. was lodged at about 7 P.M. at the local police station. Police came, arrested the accused from the house and undertook and completed the investigation in a routine manner so as to submit charge sheet against the accused for the offence under Section 302, I.P.C. M.O.I. is the bamboo stick (part of mosquito-net stand), M.O. III is the broken glass, M.O. IV is the steel place and M.Os.II to 11/14 are the broken pieces of wood, which were allegedly thrown by the appellant at the deceased so as to cause the aforesaid injuries.
4. As it appears, the family members in the family of the appellant including the brothers and the father lost all their sympathy to the appellant because of the aforesaid misdeed and therefore at the time of trial, appellant was defended by a counsel appointed as the State Defence Counsel.
5. While denying to the charge under Section 302, I.P.C. appellant precisely took the plea of mental abnormality as the outcome of the aforesaid occurrence.
6. Prosecution relied on the evidence of eye-witnesses viz., P.W. No. 1 – a co-villager who was present at the scene of occurrence, P.W. No. 2 – one of the elder brothers of the appellant, P.W. No.5 – father of the appellant P.W. No. 7. – the eldest brother of the appellant, P.W. Nos. 3 and 4 are the two witnesses to the seizure, P.W. No. 6 is the Police Havildar who accompanied the dead body for post mortem examination. P.W. No. 10 is the doctor who conducted the post mortem examination and P.W.Nos. 8 and 9 are the two Investigating Officers. Accused/ appellant did not adduce any defence evidence.
7. Learned Sessions Judge, on appreciation of the evidence, concluded that undisputedly the deceased suffered a homicidal death and the accused is the author of the injuries. Since the appellant failed to prove the plea of insanity, therefore, he is not protected by the exception as provided in the Indian Penal Code. Looking to the nature and gravity of the injury and death of the deceased soon after the occurrence, learned Sessions Judge concluded that the offence committed by the appellant is murder being punishable under Section 302,I.P.C. Accordingly he sentenced the appellant to undergo imprisonment for life.
8. Learned counsel for the appellant argues that accepting the evidence tendered by the prosecution on its face value, the trial Court failed to read and appreciate the evidence of P.W. No. 1 in connection with the defence plea in as much as P.W. No. 1 stated in his cross-examination that,
“5. For the last two years I have been seeing the accused in my village. The accused had no stability of mind at times. He used to become mad at times. On the day of the occurrence, at the time of the assault, he became mad”, xx xx xx.
“There was granary inside the room and it was dark inside. The accused had no dispute with his mother prior to the occurrence, “xx xx xx xx.
He also states that though plea of mental abnormality of the appellant is not admitted by P.W. Nos. 2, 5 and 7 but they corroborate to the evidence of P.W. No.1 that the appellant was the most affectionate child of the deceased. Therefore, in view of the above quoted evidence coming from the mouth of the witnesses examined by the prosecution, there was no necessity for the appellant to adduce any further evidence in support of his plea of insanity. Learned Addl. Govt. Advocate on the other hand argues that the aforesaid evidence of P.W.No.l brought on cross-examination suffers from lack of corroboration and not only that, P.W. Nos. 2, 5 and 7 have categorically stated in their evidence that appellant never suffered from any abnormality or insanity and therefore the aforesaid evidence of P.W. No. 1 was rightly not accepted by the trial Court in proof of the plea of insanity of the appellant.
9. Section 60 of the Indian Evidence Act provides to accept oral evidence when it is of the nature of direct evidence. Evidence given of a fact, which could be seen, heard, perceived must be stated by the witnesses respectively to have seen, heard or perceived in any particular manner. Similarly, if the oral evidence is an opinion, then the person giving that opinion must state the grounds on which he forms that opinion. Section 51 of the Evidence Act provides that,
“Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant”.
Therefore, while considering the opinion evidence of P.W. Nos. 1,2,5 and 7 on the mental state of the appellant, Court has to take the aid of presumption, as defined in Section 4 of the Evidence Act, when such opinion is not supported by any scientific examination of the appellant or an opinion of an expert on such insanity or instability of mind. In this case P.W. No. 1 has made abstract statement, which has been quoted above. His acquaintance with the appellant, as admitted by him, is of two years. On the other hand, P.W. Nos. 2, 5 and 7 have acquaintance with the appellant from the date of his birth till the date of occurrence. Therefore, P.W. Nos, 5, 2 and 7 being the father and the brothers of the appellant living in the same house, their opinion carries more probative value than that of P.W. No. 1 relating to the mental status of the appellant. P.W. No. 2 on being asked by the Court, deposed that,
“2. Through Court: To my knowledge, the accused had never become mad. On the date of occurrence, I found him normal and he had no madness.”xx xx
“5. Through Court: I have to enmity with the accused”.
Similarly. P.W. No. 5 deposed in his examination in chief that :
“xx xx xx The deceased was liking the accused mostly as he was her youngest son. The accused was of sound mind. He read up to Minor Class. Never he was mad”xx XX XX.
(From paragraph-2 of the deposition).
In the cross-examination he said that :
“he had no mental disorder during his study period”.
In paragraph-7 of his deposition he said,
“I have no ill-will or enmity with the accused prior to the date of occurrence”.
This witness also denied to the suggestion given by the accused that he was occasionally gjoing mad or that on the date of occurrence he became mad. P.W. No. 7 as well stated that,
“The accused was of sound mind before, at the time of, and after the occurrence”.
(Paragraph-5 of the deposition)
He has also denied to the suggestion of sporadic insanity of the appellant and such feats having occurred with him on the date of occurrence.
10. As noted above, on a comparison of the evidence of P.W. No. 1 with the evidence of P.W. Nos. 2, 5 and 7, this Court finds that the trial Court was correct in not accepting the evidence of P.W. No. 1 as the proof of madness of the appellant. Keeping in view the provision of law from the Evidence Act, as noted above, this Court also finds that the opinion evidence of P.W. No. 1 which is based on no experience or science, is of no value of supersede the evidence of P.W. Nos.2, 5 and 7. Therefore, argument of the appellant regarding proof of his insanity through P.W. No. 1 is not accepted.
11. Learned counsel for the appellant also advances alternative argument that if the plea of insanity is not accepted, then also the volumes of evidence available on record indicate that appellant had the best of the terms with the deceased, there was resentment from his side to proceed in the bridegroom’s party and therefore he remained confined inside the room with the deceased from about 11 A.M. till 4 P.M. If the appellant had the intention to kill the deceased, he would not have taken
so much of time. On the other hand, from the aforesaid facts and circumstances it is crystal clear that when his efforts to dissociate from the marriage was going to be dematerialized by the deceased by opening the door of the room, with mental depression, annoyance, diffidence the affection towards the deceased made him to react impulsively and he threw the articles in an unstable mental condition and since some of such articles hit on the deceased, she succumbed to the injuries. Since the appellant had neither the intention nor the knowledge of causing such bodily injury which was sufficient in ordinary course of nature to cause death, therefore, a case of culpable homicide amounting to murder has not been made out and therefore, at best the offence committed by the appellant is punishable under Section 304, I.P.C. and not under Section 302, I.P.C. Learned Addl. Govt. Advocate repels the aforesaid argument but unable to extend any cogent reason in support of his contention,.
12. As provided in Section 300, I.P.C, culpable homicide is murder, if the act by which death is caused is done
(i) with the intention of causing death, or
(ii) it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
(iii) it is done with the intention of causing bodily injury and such bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
(iv) the person committing the act knows that the injury caused is imminently dangerous and, in all probability, cause death, or is likely to cause death and notwithstanding that he commits such act without any excuse for incurring the risk of causing death or such injury.
In Section 300, I.P.C. exceptions have been provided by indicating as to when culpable homicide is not murder. So far as the present case is concerned, appellant has banked upon the Exception (I). That exception provides that culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation. That exception relating to provocation also runs with the rider of three exceptions, which are immaterial for the purpose of this case except Explanation to Exception (I), which provides that, ‘whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact”.
13. Keeping in view the aforesaid penal provision to define murder and culpable homicide and looking to the details of the facts and circumstances already indicated in the preceding paragraphs, we find that learned Sessions Judge, did not properly appreciate the fact and circumstance while concluding that appellant is guilty of murder. As rightly argued by the appellant, if the appellant had the intention to kill the deceased, then he had enough opportunity between 11 A.M. to 4 P.M. inside the occurrence room. He neither did any harm to the deceased nor attempted to do any harm to her so long as the deceased did not try to open the door from inside. It is the admitted position on record that after taking a bath in the morning, petitioner remained confined in that room without taking any food. It is also the admitted case of the parties that he resisted to the marriage ceremony and accordingly did not like to proceed with the bridegroom’s party. It is also the admitted case of the parties that appellant was the most affectionate child of the deceased being her youngest son. It is also the admitted position on record that amongst the brothers, each one is educated and well placed except the appellant and, therefore, there is nothing on record to indicate that he was disobedient to his superiors. It is also the admitted position on record that there was continuous insistence from outside the occurrence room by the father, brothers and other relatives to open the door and in that process they were trying to remove the window-frame and also to break open the door. In fact, ultimately they succeeded in breaking open the door. Appellant being put in such fact situation it appears to be most probable that what he did was after losing his self-control i.e., losing the mental balance and having no intention to cause such bodily injury either having the intention or the knowledge to cause the death of the deceased. Under such circumstance, appellant could not have been convicted for the offence of murder, to be punished under Section 302, I.P.C. We find that the case is squarely covered by the provision in Section 304, First Part, I.P.C. and therefore, we convict the appellant for the offence of culpable homicide not amounting to murder and sentence him to undergo rigorous imprisonment for a period of ten years.
Accordingly the Criminal Appeal is allowed in part. It is stated by learned counsel for the appellant that the appellant is still in jail custody. Therefore, if the appellant has already undergone a period of ten years imprisonment, then he be set at liberty.
B.P. Das, J.
I agree.