Partly allowed

Sabavath Naik, v. The State of A.P.

Telangana HC30 Dec 2013CRLA/513/2009

Case brief

AI extract

What is this about?

Criminal appeal against murder conviction. Appellant pleaded insanity and sudden quarrel. Court rejected insanity plea. Conviction under Section 302 IPC set aside; accused convicted of culpable homicide amounting to murder under Section 304 IPC and sentenced to ten years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC set aside; accused convicted of Section 304 Part-I IPC and sentenced to rigorous imprisonment for ten years.

Sabavath Naik, Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2013)

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HON'BLE SRI JUSTICE K.C. BHANU AND HON’BLE MRS JUSTICE ANIS

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CRIMINAL APPEAL No.513 of 2009

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JUDGMENT:- (per Hon’ble Sri Justice K.C. Bhanu)

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This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 08-07-2008, in Sessions Case No.306 of 2007 on the file of the Principal District and Sessions Judge, Medak at Sangareddy, whereunder and whereby, appellant/accused was found guilty of the offences punishable under Sections 302 and 324 of the Indian Penal Code, 1860 (for short, ‘IPC’) and accordingly, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- (Rupees five hundred only), in default to suffer simple imprisonment for three months for the offence punishable under Section 302 IPC and further he was convicted and sentenced to undergo rigorous imprisonment for three years and also to pay a fine of Rs.200/(Rupees two hundred only), in default to suffer simple imprisonment for one month for the offence punishable under Section 324 IPC and both the sentences were directed to run concurrently.

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2. The prosecution case in brief may be stated as follows: Banaoth Dhani Bai (hereafter referred to as ‘the deceased’) is no other than the wife of PW1. They are residents of Ryalamadugu village living by labour work. The accused is also resident of the same village. On 05-02-2007 at about 11.00 a.m., while PW1 and the deceased were proceeding near the land of the

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accused, the accused attacked both of them with a knife and caused severe bleeding injuries for the reason that the deceased was practicing sorcery in the village. The persons present shifted the deceased to Government Hospital, Narayankhed for treatment. On receipt of hospital intimation from the Government Hospital, Narayankhed, PW12 proceeded to the hospital and recorded Ex.P1 statement from PW1 and registered a case in Crime No.10 of 2007 under Sections 307 and 324 IPC.

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Sub-Inspector of Police, Narayankhed proceeded to the scene of occurrence and observed the scene of occurrence in the presence of PW9 and others. He prepared Ex.P8 scene of observation panchanama and also Ex.P9 rough sketch of the scene of occurrence. He examined PWs.1 to 6 and recorded their statements under Section 161 (3) of Code of Criminal Procedure, 1973. For better treatment, both PW1 and the deceased were shifted to Gandhi Hospital, but on the way to the hospital the deceased succumbed to the injuries. On receipt of the death intimation, PW12 altered the Section of law from 307 IPC to 302 IPC. On the next day, he conducted inquest on the dead body of the deceased in the presence of PW7 and others under Ex.P3. PW13 took up further investigation and arrested the accused on 08-02-2007 at about 11.30 a.m. The accused said to have given confessional statement as in Ex.P6. In pursuance of the said confession, accused took the police and mediators to his house and produced a knife M.O.1. The same was seized under Ex.P7 panchanama. The Doctor who conducted autopsy on the dead body of the deceased opined that the deceased died as a result of head injuries. After receipt of report from the Forensic Science Laboratory and after completion of investigation PW13 filed charge sheet.

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3. The trial Court framed the following charges against the

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accused:

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“FIRST: That you (accused) on or about 05-02-2007 at about 11 A.M. at your native Gadda thanda H/o.Rayalamadugu village, alleging that Banoth Lokya Naik and his wife, namely, Banath Dhani Bai (since deceased) were practicing sorcery in the village, attacked them with a knife, stabbed the deceased on her head and back side, and she succumbed to the stab injuries on the way to Gandhi Hospial, Secunderabad and that thereby you committed an offence punishable under Section 302 of the Indian Penal Code and within my the cognizance.

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SECONDLY: That you on or about the date/place/time stated in first Charge did an act by attacking Banoth Lokya Naik with such intention (or knowledge) and under such circumstances, that if by that act you had caused the death of said Banoth Lokya Naik, you would have been guilty of murder (and that you caused hurt to the said Banoth Lokya Naik by the said act), and thereby committed an offence punishable under Section 307 Indian Penal Code and within my cognizance.

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LASTLY: That you on or about the date/place/time stated in first charge voluntarily caused hurt to Banoth Lokya Naik by means of a knife, which is an instrument for shooting (or stabbing, etc.) and thereby committed an offence punishable under Section 324 of the Indian Penal Code, and within my cognizance.”

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When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.

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4. To substantiate the charges, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P-15 besides the case property M.Os.1 to 3.

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5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and did not adduce any oral or documentary evidence.

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6. Considering oral and documentary evidence on record, the trial Court found the accused guilty of the offences punishable under Sections 302 and 324 IPC, and accordingly, convicted and sentenced him as stated above. Challenging the same, the present appeal is filed.

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7. The points for determination are:

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Whether the prosecution proved its case beyond all reasonable doubt against the accused for the charges under Sections 302 and 324 IPC and whether the judgment of the trial Court is correct, legal and proper or not?

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8. POINTS:- The learned counsel for the appellant contended that the accused committed the offence while he was insanity and at the time when he was questioned with regard to the charge, he has categorically stated that he was suffering with unsoundness of mind; that the ingredients under Section 302 IPC are not made out as the incident has taken place upon a sudden quarrel without any pre-meditation; that at the time of incident, the accused was not armed with any weapon, which indicates that he had no intention to kill the deceased and therefore, she prays to set aside the convictions and sentences.

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9. On the other hand, the learned Additional Public Prosecutor contended that the evidence of PWs.1, 3 and 5 would clearly go to show that it is the accused who caused injuries to PW1 and the deceased; that the medical evidence is completely in support with ocular testimony; that in view of the fact that the incident has taken place in a broad day light, the witnesses could be in a position to identify the assailants; that recovery of M.O.1 is also an incriminating fact as it contained human blood; that the burden

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is on the accused to establish the plea of insanity under Section 84 I.P.C. and that the trial Court after elaborate consideration of evidence on record rightly found the accused guilty and that order of conviction needs no interference by this Court. Hence, he prays to dismiss the appeal.

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10. PW7 is one of the inquest mediators who was present when PW12 conducted inquest on the dead body of the deceased. The inquest mediators noticed certain injuries on the body of the deceased in column No.7 of the inquest report. Similarly, in column No.15 the inquest mediators opined that the deceased died as a result of cut injury on the neck and head.

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11. PW11 is the Doctor who conducted autopsy on the dead body of the deceased, found the following external ante-mortem injuries:

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1. Cut injury over the right parietal region and right occipital region 10 x 1 x with fracture of the occipital bone, and it is an anti-mortem grievous injury. Like an axe M.O.1 shown to me in the court can caused the injury stated by me above as it is a sharp edged blunt weapon. The age of injury is within six hours.

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2. Cut injury over the right parietal region 4 x 1 inch simple in nature caused by sharp edged blunt weapon like M.O.1.

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3. C ut injury over the right side of the neck 5 x 2.5 cms reddish colour, simple in nature caused by M.O.1.

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4. Cut injury over the right parietal region to right side of the fore head 5 x 1 cm bony deep simple in nature antemortem caused by above weapon.

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He opined that the deceased died due to hemorrhage and shock as a result of cut injury over the right parietal region, right occipital region with fracture of the occipital bone, with collection of haematoma in the brain. Injury No.1 is sufficient to cause the death in the ordinary course of nature. Ex.P10 is the post mortem examination report. Practically, the medical evidence remained

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unchallenged. The medical evidence leaves no room to doubt that the deceased died as a result of head injury, which is homicidal in nature.

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12. Scene of occurrence is not seriously disputed by the accused. It is situated in Gadda Thanda hamlet of Ryalamadugu village near the land of the accused. PW12 observed the scene of occurrence in the presence of PW9 and others. Ex.P8 is the scene of occurrence report and Ex.P9 is the rough sketch. From the evidence it is clear that the scene of occurrence is situated in the outskirts of Gaddathanda near the lands of the accused.

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13. PW1 is the husband of the deceased. According to him, while he himself and his wife were going from their Thanda to Ryalamadugu and when they reached the land of the accused, the accused ascribed that they were doing banamathi (sorcery) and he was getting mentally upset and brought one knife from his house and gave a blow on the neck and head of deceased. When PW1 tried to intervene, accused caused injuries on the left palm and left ear. Then both were taken to Narayankhed Government Hospital for treatment. On receipt of medical intimation from the Doctor, PW12 went to the hospital and recorded the statement of PW1. The earliest version as stated in Ex.P1 would clearly go to show that it is the accused who caused injuries to his wife and PW1. Recording of Ex.P1 from PW1 by PW12 is not seriously denied or disputed by the accused and within one and half hour after the incident, First Information Report came into existence. When the recitals in Ex.P1 are not shown to be incorrect or ante-dated, they can be used to corroborate the evidence of PW1. So, from the recitals in Ex.P1 and the evidence of PW1, it is clear that it is the accused who caused injuries to the deceased as well as PW1.

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There is no other reason to doubt the presence of PW1 at the relevant point of time of the incident. Further more PW1 is an injured witness. Ordinarily courts should be loath to reject the testimony of an injured witness. This is because injuries ensure the presence of a witness. It is intrinsic norm of appreciation of evidence that before the testimony of injured witness can be accepted, it has to pass the test of truthfulness and should be consonance with probabilities. PW11 is the Doctor who examined

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PW1, found the following external injuries:

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1. Cut injury over the left ear pinna, 2.5 x .5 cms reddish in colour, simple in nature caused by sharp edged blunt weapon. Age of the injury is within six hours prior to the examination.

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2. An incised wound over the left ear 5 cm x 2.4 cm reddish in colour, simple in nature might have caused by sharp edged weapon, age of the injury is within 6 hours.

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3. Laceration over the left side of the neck 2.5 cms 1.5 cms reddish in colour, simple in nature might have caused with blunt weapon, age of the injury is within six hours.

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4. Cut injury over the left cheek 5 x 2.5 cms reddish in colour simple in nature, might have caused by sharp edged blunt weapon, age of the injury is within 6 hours.

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5. Cut injury over the left palm 5 x 2.5 cms reddish in colour simple in nature, might have caused with sharp edged blunt weapon, age of the injury is within 6 hours prior to the examination.

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He issued Ex.P11 wound certificate. He stated that injury No.1, 2, 4 and 5 were possible by stabbing with a weapon like M.O.1 and injury No.3 can be caused with a blunt object. Practically, the evidence of PW11 and the recitals in Ex.P11 remained unchallenged.

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14. It is not the case of the accused that PW1 sustained those injuries at a different place in a different manner at the hands of different persons. When it is shown that PW1 sustained those injuries during the course of same transaction in which deceased sustained injuries, the evidence of PW1 can be accepted.

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Therefore, the evidence of PW1 can be put in the category of wholly reliable, as he has no grouse or enmity against the accused so as to implicate him falsely. The mistaken or false identity of the accused can be ruled out because the incident has taken place in a broad daylight.

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15. Further the evidence of PW1 is in support with the evidence of PWs.3 and 5. Their evidence also would clearly go to show that it is the accused who caused injuries to the deceased as well as PW1. PW4 who came to the scene of occurrence after coming to know about the incident saw the deceased lying with injuries on the neck and head. At that time, the accused was present with a knife in his hand and he was warning the persons present there not to come near the injured. Thereafter, he saw the injuries on the body of PW1.

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16. PW2 who is said to be an eyewitness did not support the case of the prosecution and was declared hostile by the prosecution. Still his evidence can be used to support the other evidence provided that part of evidence inspires confidence. He specifically stated that by the time of coming to know about Dhani Bai was beaten, he went near the house of accused and saw the accused was present by holding a knife at the scene of occurrence. To that extent his evidence can be taken into consideration to support the case of prosecution.

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17. PW6 was declared hostile by the prosecution. His evidence to the extent that by the time he went there, the accused beat the deceased with knife on her neck and caused bleeding injury and then they all caught hold of the accused, can be taken into consideration.

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18. Another circumstance the prosecution is relying upon is, arrest of the accused and recovery of M.O.1. PWs.8 and 10 are the mediators for the arrest of the accused. Though PW8 declared hostile, as he did not support the case of the prosecution, the Investigating Officer has categorically stated that the accused gave a confessional statement as in Ex.P6 (admissible portion). In pursuance of that confessional statement, the accused led the police and mediators to his house and produced a knife M.O.1. The same was seized under Ex.P7 mediators report. When M.O.1 was sent to the Forensic Science Laboratory, it contained human blood as per Ex.P15 report. Therefore, this circumstance can also be taken into consideration to infer that the accused is the assailant of the deceased. Practically, the evidence of all the eyewitnesses remained unchallenged and they have no other reason to implicate the accused falsely leaving the real assailants. So, the prosecution established its case beyond all reasonable doubt to show that the accused is the assailant of the deceased.

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19. Now, it has to be seen whether the case falls under Section 84 IPC or not. Whenever the accused pleads a defence like insanity, the burden is on him to establish the same in view of Section 105 of the Indian Evidence Act, 1872. The burden on the accused shall stand discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. For discharging that burden, he need not come to the witness box. He can also show by eliciting some material from the evidence of prosecution witnesses to show that he was suffering from unsoundness of mind at the time of incident. There cannot be any dispute that the accused must show that he was suffering from unsoundness of mind at the time of incident. Learned counsel

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for the appellant placed reliance on a decision reported in ELAVARASAN V. STATE REP. BY INSPECTOR OF POLICE^[1] , wherein it is held in paragraph No.15 as follows:

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“15. A careful reading of the above would show that not only is the burden to prove an exception cast upon the accused but the Court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code or within any special exception or provision contained in any part of the said Code or in law defining the offence. The following passage from the decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 may serve as a timely reminder of the principles governing burden of proof in cases where the accused pleads an exception:

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“The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:

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(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.

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(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

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(3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged”

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20. The accused failed to fulfill his obligation to prove that he was of unsoundness of mind at the time of committing offence by adducing cogent evidence. There is absolutely no evidence to

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show that he was suffering with any unsoundness of mind at the time of incident. So, in the absence of any proof of insanity, it would be difficult to hold that the appellant was suffering with any un-soundness of mind. When the charge was explained to the accused, he stated that he might have done the offence because he was not mentally sound. Mere saying by the accused at the time of charge that he was not mentally sound by itself cannot be taken as a circumstance to show that the accused was suffering with unsoundness of mind. It must be proved by cogent evidence by preponderance of probability. Such evidence is lacking in this case. Therefore, the plea of insanity cannot be accepted.

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21. Now it has to be seen whether the case falls under culpable homicide amounting to murder or not. Necessary ingredients to constitute the offence of murder, which is defined under Section 300 IPC is as follows:

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“300. Murder:-

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Firstly Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing or-

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Secondly- If it is done with 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-

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Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

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Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid.”

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There is absolutely no motive for the accused to commit the murder of the deceased. There are no prior disputes between the

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accused and the deceased. The accused was not armed with any weapon at the time of the incident. While PW1 and the deceased were going, on seeing them the accused who was mentally upset brought one knife from his house and caused four injuries out of which one proved to be fatal. Accused also caused simple injuries to PW1. As the house of the accused is located near the scene of occurrence, he went there and brought the knife. Therefore in our considered opinion the incident has taken place upon a sudden quarrel without any pre-meditation and the accused has not taken any un-due advantage and he was not ran away from the scene of occurrence.

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22. Learned counsel for the appellant also placed reliance on a decision reported in VIJAYA KUMAR DHRUV V. STATE OF CHHATTISGARH^[2] , wherein it is held in paragraph No.17 as follows:

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“In the present case, there was no previous enmity between the parties, there was no propriety for causing such injuries and after causing injury appellant has not tried to flee from the spot he was not holding any weapon and he has not caused repeated injuries but at the time of causing injury, that too over the head by wooden stick appellant was having knowledge that by his act the deceased may die. Therefore, the act attributed to present appellant squarely falls within the ambit of Section 304, Part I of the IPC and not under Section 302 of the IPC.”

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So, from the facts and circumstances of the case it can be said that the case falls under Section 304 Part-I IPC.

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23. In the result, the conviction and sentence recorded by the Principal District and Sessions Judge, Medak at Sangareddy against the appellant/accused vide judgment, dated 08-07-2008, in Sessions Case No.306 of 2007 for the offence punishable under

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Section 302 IPC are set aside. However, the appellant/accused is found guilty of the offence punishable under Section 304 Part-I IPC and accordingly, he is convicted and sentenced to undergo rigorous imprisonment for ten (10) years. The period of remand underwent by the appellant/accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C.

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24. To the extent indicated above, the appeal is partly allowed.

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25. Miscellaneous Petitions pending, if any, in this Criminal Appeal shall stand closed.

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______________________ JUSTICE K.C. BHANU

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_________

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December 30, 2013 PN

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HON'BLE SRI JUSTICE K.C. BHANU AND HON’BLE MRS JUSTICE ANIS