DATE : 21-08-1989 1990-(096)-CRLJ -1861 -MP
JUDGE(S) : Faizanuddin Y B Suryavanshi MADHYA PRADESH HIGH COURT
JUDGMENT
Y. B. SURYVANSHI, J. :- This Criminal Appeal No. 629 of 89 and Criminal Reference No. 5 of 1989 arise our of judgment and findings, dated 23-6-1989, of the Court of Shri D. P. Verma, A.S.J., Mandla, in S.T. No. 132/88. The appellant Bhansingh Gond has been convicted for the murder of Rajobai, aged 3 years, under S. 302, I.P.C. and sentenced to death and the proceedings and the case under S. 366, Cr.P.C. have been submitted for confirmation of sentence under S. 368 Cr.P.C. This judgment in Criminal Appeal No. 629/89 will also govern the disposal of three Criminal Appeals viz. No. 628/89 (Criminal Ref. No. 4/89), No. 630/89 (Cri. Ref. No. 6/89) and Criminal Appeal No. 631/89 (Cri Ref. No. 7/89) arising out of judgments delivered on the same date i.e. 23-6-89 (respectively, arising out of Sessions Trials No. 131/88, 133/88 and 134/88), further convicting the appellant-Bhansingh under S. 302, I.P.C. for the murders of Gallobai, Sakhiyabai and Vishnu respectively, in which also the appellant has been sentenced to death, and the corresponding Criminal References relate to proceedings for confirmation of the sentence of death under S. 368, Cr.P.C. All those four murders took place on the same date at village Gutli and in close proximity of time and places, in succession, sometime between 2.30 and 3.30 hours in the afternoon on 27-2-88.
(2) (a) According to the prosecution, the accused/appellant Bhansing, a tribal hailing from Gond community, lived in a tribal hamlet, called, Gutli with his wife P.W. Chhitabai. They had seven issues, but all females. The accused laboured under a superstition that if he killed a daughter they would be blessed with a son.
(b) It is further alleged, that on 27-2-88, at about 2.30 p.m. while accused’s wife Chittabai was feeding milk to the youngest daughter, Rajobai, aged hardly 3 years, the accused snatched the baby inspite of some resistance by his wife. He caught hold of the feet of the girl and threw her forcibly on the ground, causing thereby, Rajobai’s death (subject matter of S.T. 132/88 = Cr. A. No. 629/89).
(c) It is alleged, that thereafter, accused became rash and assaulted those who came across on his way. One Mst. Gallobai (deceased) was returning home with a bundle-load of empty utensils and some straw on her head. The accused caught hold of braids of her hair and struck her with stone and killed her (subject matter of S.T. 131/83 = Cr. A. No. 628/89).
(d) The accused on his way came across Sakhiyabai (deceased) who was similarly stoned to death (S.T. No. 133/88 = Cr. A. 630/89).
(e) Allegedly, the accused proceeded further and killed a small buffalo belonging to Vishnu Gond and thereafter, Vishnu Gond (deceased) too was stoned causing dangerous injuries; and ultimately on the next day he breathed his last in the hospital (S.T. No. 134/88 = Cr. A. 631/89).
(3) It is further alleged, that one Dumari (there are three persons of that name) broke the news of those events to P.W. Samharsingh-Kotwar of the village who went to the place of incident and found three dead bodies with one injured viz. Vishnu. Meanwhile, it is alleged, that the accused had run away towards the jungle. P.W. Dumarsingh s/o Jone Singh, with Phulsingh and others, went in search of accused and ultimately they apprehended him. Accused was tied with a rope, brought in the village, and locked inside a room. P.W. Samharsingh Kotwar with some others went to the police station Shahpura, situated about 6 k.m. from village GUTLI where he lodged the F.I.R. (Ex. P-2) on the same date, at 6 p.m., which was recorded by PW shri Ravishankar Sadse H.C., at P.S. Shahpur. Suffice to state that other formalities regarding Inquests followed which do not call for detailed discussion. P.W. Shri B. K. Shrivastava, SI/IO arrested the accused on 28-2-88 at 12.10 noon. The further allegations are, that accused gave information to PW Shrivastava in presence of Panchas, led them to the place of incident and stones having blood stains were seized. Since such seizures are not of any consequence, under S. 27, Evidence Act and it is unnecessary to refer them further.
(4) The dead bodies were sent for post-mortem examination. Autopsies were performed by P.W. Dr. Anand, Assistant surgeon with following results :
(i) Rajobai d/o accused Bhansingh :
“…….. swelling forehead, cynosis over lips, rigor mortis present, there was swelling over face and depression over scalp, with haemotoma just below skin over skin deep, ….. front-parietal, sagithal, parieto occipital sutures were separate. There was a triangular depressed fracture (shown in diagrame) … head injury and depressed multiple communited fracture …. Intra cerebral haemotoma …. (cause of death) Head injury-Intra cerebral haemorrhage (shock) (Ex. P-8 in S.T. No. 132/88 = Cr. A. 629/89).
(ii) Gallobai aged 45 years, w/o Baratu Patel :-
“Rigor mortis was present more over upper limbs than lower limbs. P.W. lividity on back, Rt. eye and Rt. cheek swollen. Bleeding from Rt. ear. C.L.W. 1″ x 0.5 c.m. over forehead, Rt. sided 2″ …… Diffused intracranial haemotoma in middle of post region of cerebral cortex” ….. Hear Injury-Intra cerebral haemorrhage” …… Sufficient in ordinary course of nature to cause death”. (P.W. 9 Dr. Anand – P.M. Report Ex. P/9 in S.T. No. 131/88 = Cr. A. 628/89).
(iii) Sakhiyabai aged 35 years w/o Lar Singh Gond :
“Injuries (1) C.L.W., L shaped 2″ x 1″ x 0.5 c.m. over Rt. parietal area with clotted blood; (2) C.L.W. curved 2″ x 2″ x 0.5 c.m. over Rt. parietal (3) C.L.W., 1″ x 0.5 c.m. deep over parietal and frontal area Rt. (4) C.L.W., 1″ x 05 c.m. x 0.5 deep over Rt. occipital area on removing skin, diffused haematoma with depressed, semilunar fracture over Rt. parietal bone extending till frontal, temporal and occipital areas 9″ x 5″, …. depressed communited with multiple fragments of bone …. 7 pieces big, others small,” ….. “Intra uterine baby in uterus of size 8″ x 8” (P.M. Report Ex. P/8, PW 11 Dr. Anand, = S.T. 133/88 = Cr. A. 630/89).
(iv) Vishnu Gond, age 65 years :
“….. Depression over occipital area, linear in nature, 4″ x 0.5 c.ms. horizontally …. cut over helix of left ear 1 c.m., clear, though and through, with blood clot, antemortem in nature ….. C.L.W. 1″ x 0.5 c.m. over left side of forehead of scalp 1 1/2″ above left side of eye clotted blood over both nostrils and left ear on removing skin, there was a huge haematoma between deep fose and muscles i.e. temporal area …. There was a huge haematoma over occipital area in cerebral cortex”. Cause of death – due to Intra cerebral haemorrhage.” (P.W. 11 – Dr. Anand, Ex. P-9 in S.T. No. 134/88 = Cr. A. 631/89).
(5) Though initially the investigation commenced on basis of the FIR (Ex. P-2) lodged by Samhar Singh, Kotwar, four separate crimes were registered, though the investigation had been simultaneous. Four charge-sheets for four murders were submitted. The appellant abjured the guilt and stated that he does not know anything about the incidents. The plea of insanity under Section 84 was also taken during trial suggesting, that the accused had suffered from imbalanced mind, previous to the incident, and was also in the same mental condition while the acts were committed. However, no evidence was adduced. The learned trial Court found, that four persons abovenamed have died; that, their deaths were homicidal; that the appellant committed the murders. The defence plea, it was held, cannot be accepted because the appellant was capable of knowing what he did. Accordingly, the appellant has been convicted for all the four murders, and references have been made for confirmation of death sentence.
(6) We have perused the record and also heard the learned counsel for the appellant Shri Fakhruddin and the learned Dy. Advocate General, Shri Dilip Naik appearing for the State. There cannot be any dispute that the four persons above-named died and their deaths were homicidal. The first victim was Rajobai in Sessions Trial No. 132/88. The prosecution examined 9 witnesses. The material witness in this trial is P.W. 3 Chhitabai, wife of the accused. She has deposed that they have seven children, all daughters and no son. She has proved the prosecution allegation that while she was feeding her youngest daughter, Rajobai, aged 3 years, in her house, the accused came from the PARCHHI and snatched the baby from her arms. She tried to resist but it was in vain. She further states, that the accused after snatching the baby, caught her by her feet and forcibly banged her (Baby) on the ground. She has also deposed about the three incidents. Because of fright, she ran away and hid herself at some distance but could see what the accused did afterwards. In fact, she ran away because when she tried to resist, the accused hurled filthy abuses, and she anticipated that he would attack her with the stone, hence, she took her heels. The accused then went in the direction of Basti. He came across Gallobai and she was hit on the head with the stone. Thereafter, the accused hit Sakhiyabai, and lastly Vishnu. All were hit with stone on their heads.
(7) The other material evidence in S.T. 132/88 is that of PW. 1 Bartu and PW. 2 Rama, respectively, husband and son-in-law of the deceased Gallobai who later on found her dead. PW 4 Dumari says that along with other person also called Dumari, he managed to catch hold of the accused in jungle. He was tied with rope and then lodged in a locked room.
(8) In S.T. No. 131/88 which relates to Cr. A. 628/89 (murder of Gallobai) P.W. 1 Chhitabai was examined and her statement is similar to what she has stated about the incident as it started with the death of Rajobai. She has deposed about the accused hitting Rajobai. Similarly, PW 2 Chouder deposed about the assault on Gallobai. P.W. 4 Dumarsingh son of Jounsingh, with Phoolsingh and others, went in search of the accused. P.W. 5 Samharsingh Kotwar who lodged the report was examined.
(9) In Cr. Appeal No. 630/89 (S.T. 133/88) which related to deceased Sakhiyabai, the provision, besides other witnesses, had examined PW 1 Lalsingh. He stated that he was in his Angan, and his wife was standing when the accused came, and with a stone which weighed about 1 1/2 kg., beat his wife on the face. His wife died on the spot. PW 2 Chamelibai is Bhojai of PW 1. She had also deposed about the attack on Sakhiyabai with two minor children belonging to Sakhiyabai, she ran away towards jungle. PW 4 Shyamsingh had also deposed about the attack on Sakhiyabai, besides Chhitabai, who was also examined in this S.T. (No. 133/88) as PW 5.
10 In S.T. No. 134 (Cr. A. 631/89) PW 4 Shyamsingh had deposed that he saw the accused killing Sakhiyabai and thereafter, the accused went towards the house of Vishnu, caught hold of him, and hit his face with the stone. PW 5 Bundibai had also seen the assault on Vishnu. In this sessions trial PW 6 Chhitabai is also examined as PW 6. Besides other witnesses, PW 7 Dumarsingh son of Jounsingh and PW 8 Samharsingh Kotwar have also been examined.
(10-A) We have chosen to briefly refer the material evidence in all the four trials, and there is no manner of doubt that it is the accused who had committed those murders.
(11) the crucial questions for further decision are; whether the accused intentionally or knowingly caused those deaths ? or as stated by the learned counsel for the accused, he suffered from insanity as defined in S. 84, I.P.C. Section 84, I.P.C. reads as under :-
“84. Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
In India the law laid down in the above section is substantially the same as the M’Cnaghtan Rules in England. In order to get the benefit of this section, the crucial point of time is the time of the commission of the offence. It is to be shown that the accused suffered from unsoundness of mind at the time when the offence was committed. It is also to be noted that there is a distinction between “medical” as “legal insanity” and the Courts are concerned only with legal insanity. If the facts show that the accused knew that he had done something wrong, he cannot be exempted under this section. In order to claim exemption from criminal liability, the person must be incapable of knowing (i) the nature of the physical act, (ii) or that his physical act is illegal or that it is contrary to law, and (iii) that the act is wrong one. “Epileptical insanity” may fall under this section if it is established that he was suffering from it at the time of commission of the crime.
(12) In Dahyabhai Chhajanbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 : (1964 (2) Cri LJ 472), plea under S. 84, I.P.C. was raised, Considering the impact of S. 84, read with Sections 104, 105 and 101, Evidence Act, their Lordships observed that an accused is presumed to be an innocent, and therefore, the burden lies on the prosecution to prove the guilt on the accused beyond reasonable doubt. Section 84 being an exception, under S. 105 of the Evidence Act, the burden of of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. Under S. 105 of the Evidence Act, read-with the definition of “shall presume” in S. 4, therefore, the Court shall regard the absence of such circumstances as proved. Their Lordships, in Dahyabhai’s case (supra), observed as under :
“It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution therefore in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S. 299 of the Indian Penal Code. This general burden never shifts, and it always rests on the prosecution. But Section 84 of the Indian Penal Code provides, that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of “shall presume” in S. 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, believes that the said circumstances existed, or their existence was so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a “prudent man”. If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of “prudent man”, the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge a regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution, and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.”
It seems that in Dahyabhai’s case (supra), on facts as proved, there was a “motive” for the appellant to kill his wife in the ghastly manner by inflicting 44 knife injuries. On the next question about the previous history about the mental condition of the accused, on facts, it was found that the plea of insanity was a belated afterthought and a false case and therefore, this plea of insanity was not accepted.
(13) We have also referred (from M.P. Gwalior Bench) State of M.P. v. Ahmadulla, AIR 1961 SC 998 : (1961 (2) Cri LJ 43) which also lays down the proposition, that the burden of proof lies on the accused to show that the mental condition of the accused was, at the crucial point of time, such as is described by S. 84. That was a case in which about two years prior to the incident, the accused was treated as a private patient in the mental hospital, and had suffered from an epileptic type of insanity. Another expert was also examined, besides the father of the accused. It was emphasised that under S. 84, I.P.C. the crucial point of time at which the unsoundness of mind should be established is the time when the act was committed. In that case there was nothing on record on basis of which it could be said that at the moment of the act the accused was incapable of knowing that what he was doing was wrong or contrary to law. From the facts reported in that decision, it appears that it was a crime committed not “in a sudden mood of insanity” but was preceded by” careful planning and exhibiting cool calculation in execution.”
(14) In the instant case, as regards the plea of insanity, the learned counsel Shri Fakhruddin urged, that the accused first killed his daughter, which itself was an abnormal act. There is no cogent material to substantiate the allegation that he laboured under a superstition that by killing his daughter he would be blessed with a son. Then, it is urged, that there is total absence of motive in the four murders committed by the accused. The further argument is that the prosecution has proved only actus reus but not the mens rea. The witnesses were cross-examined on this aspect. In S.T. 132/88, P.W. 1 Bartu – who is the husband of Gallobai (deceased) in cross-examination, stated, that his relations with the accused were quite cordial. In para 2 he stated that he does not know whether the accused was insane on that day or on previous occasions. This witness is not a Gond, and he says, in cross-examination, that the mentally imbalanced persons are brought to Chougan Ki Madiva though he does not know whether the accused was given such treatment. From the statement of PW 2 Rama, however we find that on the day of the incident the accused certainly uttered – that if he kills his daughter, he will get a son. However, PW 2 Rama states that while killing Gallobai, his mother-in-law, the accused alleged her “SHODHAN” (which are evil spirits). PW 2 Chhitabai, in Paras 4 and 5 stated that on the date of the incident, the eyes of the accused were “red”, and he had not taken meals; That about four months before these incidents she had taken him a Panda, resident of village Gundisarai, where there is a Madiva/Mandir and for his abnormal acts, such as eating leaves and earth, he was given treatment. But then, that Panda has not been examined who could have deposed all about the abnormalities if any, in the accused’s behaviour and the kind of treatment given by him. PW 4 Dumari Singh categorically stated that he was one of those who had gone to apprehend the accused, but he did not notice any abnormality. On the other hand, when the accused was caught by them, he pleaded to be released; and he had all the normal faculties in identifying them – and talking with them by their names. PW 7 Samhar Singh is the Kotwar of the village. Para 4 of his statement shows that when the I.O. interrogated the accused he had taken them to the place and pointed out the stones. This evidence cannot be considered under Section 27, Evidence Act, but is quite relevant to consider whether the accused was of an imbalanced mind ? No questions have been asked from this witness, though he is a Kotwar, about other abnormal acts stated by the accused’s wife in her evidence. It is unlikely that as a Kotwar of a small hamlet he would be unaware of such abnormal behaviour, if any. All that he says is that after the incident, the eyes of the accused were” red and he talked “irrelevant”. P.W. 8 Shrivastava, I.O. did not get the accused examined medically but had stated that he did not find any abnormality.
(15) In a plea of insanity, the antecedents, attending and subsequent conduct of the accused is relevant, but such conduct is not per se enough to shoe the state of mind of the accused at the time of the commission of the act. The kind of cryptic evidence already observed above, would not satisfy a prudent man referred in Dayabhai’s case, (1964 (2) Cri LJ 472) that such a plea has been raised about the mental state of mind of the accused at the time of the commission of the offence. On the contrary, the learned Dy. A.G. urged, that the accused, when his wife resisted, threatened her to keep away. After the incidents, he consciously ran away, and when caught, pleaded to be released. Except for the evidence of his wife, there is no other convincing evidence to satisfy us, that the plea taken up by the accused is acceptable. We are aware that the burden of proving such plea is not heavy. But the Court is not even left with a doubt on such plea of the state of mind of the accused. Furthermore, as regards the “subsequent conduct”, the trial Court had further observed, that for a long period of seven months as the trial protracted, the accused appeared in the Court but no abnormality was even evident. Thus, there is no satisfactory evidence about the previous history of his mental state i.e. antecedents or other queer behaviour, nor is there any evidence about the subsequent conduct showing insanity. In absence of materials to show that he was incapable of knowing the nature of his action that what he as doing was wrong or contrary to law. The mere circumstance that without apparent motive he has committed atleast two murders and in all four ghastly murders, in itself does not lead to a reasonable inference that he suffered from insanity. In absence of proper materials such defence, if treated a part of our judicial system would be subversive to life and property. In Rustam Ali v. State, AIR 1960 Allahabad 333 : (1960 Cri LJ 768), their Lordships observed :
“In order to bring a person within the four corners of insanity it must be shown that the cognitive faculties of the accused are, as a result of unsoundness of mind, so completely impaired as to render him incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law. Moody or pensive state of mind, or eccentricity of the type of quarrel between husband and wife on certain occasions and the attitude towards the wife in locking her up inside the house whenever he used to go to work, although signs of some eccentricity, cannot be taken as elements proving the requirements of Section 84, I.P.C. It would certainly be dangerous to admit a defence of insanity upon arguments merely derived with uncommon ferocity would alone not sufficce for the inference that the accused had a deranged mind. …. The law presumes a man of the age of discretion to be sane unless the contrary is proved.”
In view of the above discussion, we are not satisfied about the plea of insanity raised under S. 84, I.P.C.
(16) The only question which survives for consideration is the sentence. Some decisions have been referred. In Srirangan v. State of Tamil Nadu, AIR 1978 SC 274 : 1978 Cri LJ 186), Krishna Iyer, J. referring to “this aspect observed”. In the agonisingly sensitive area of sentencing, especially in the choice between life term and death penalty, a wide spectrum of circumstances attracts judicial attention the lesser penalty of life imprisonment will be a more appropriate punishment.” In that case the death sentence was set aside and imprisonment for life was awarded. In the case of Namu Ram Bora v. State of Assam, AIR 1975 SC 762 : (1975 Cri LJ 646) the appellant committed the tripple murder of his wife and two minor daughters and was sentences to death. It was found, that there was no particular motive for the appellant to commit the ghastly crime. He raised a plea of mental disorder resulting from a dog bite. Their Lordships observed” that his claim to that extent may be correct or not, but we think that the tripple murder was committed by the appellant as a result of mental imbalance which was not a pre-planned ghastly act of a criminal. The facts and circumstance of the case lead to the conclusion that in a certain stage of imbalance of mind, he committed the crime.” Taking a lenient view, the death sentence was commutted to one of imprisonment for life. In a recent decision by five Judges of the apex Court in Harbhajan Singh v. State of J.&K., AIR 1989 SC 1335, the question of delay was considered which is not the point here. But in Para 11, their Lordships observed” the circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed, and in this context in ultimate analysis it is not doubted that the legislature, therefore, was right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the Court to give special reasons thereof.” In another decision Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 : (1989 Cri LJ 14466), the apparent “motive” for the crime was “obscure”. The killings were not for gain. The target was the father and not the two infants who were killed. The death sentence was converted into imprisonment for life (Also seen Anguswamy v. State of T.N., (1989) 3 SCC 33 in which it was held, that the act was “not pre-planned).”
(17) In the instant case, the accused has failed to raise the plea of insanity as defined under Section 84, I.P.C. but the motive particularly for committing two murders, i.e. of Sakhiyabai and Vishnu is totally absent, though in case of Rajobai and Gallobai, it can be said to be obscure or scanty. There was “no pre-meditation” in the sense that the accused did not resort to any weapon, but in succession, killed the victims by stones. We may though depricate the custom-ridden practices and superstitions in the matters of which craft, sorcery etc. but our tribal community which is a customridden community, does believe in superstitions, witch craft and sorcery etc. which are unfortunately a part and parcel of their life, and in the absence of motives, the ends of justice will be met by awarding the lesser sentence provided in the law. And in the circumstances of this case this cannot be said to be “the rarest of the rare cases, “to justify the death sentence.
(18) In the result, the four appeals viz. 628/89 (S.T. No. 131/88), 629/89 (S.T. 132/88), 630/89 (S.T. No. 133/88) and 631/89 (S.T. No. 134/88) are partly allowed. The convictions of the appellant for the four murders under Section 302, I.P.C. are confirmed; but as regards the references of Death, sentence is converted into the life imprisonment. The Criminal References are rejected accordingly. The sentence of life imprisonment awarded in all the four cases, shall be concurrent.
Order accordingly.