1. The sole appellant has been convicted under Section 302 of the Indian Penal Code (for short 'I.P.C.') and sentenced to undergo rigorous imprisonment for life by judgment and order dated 27.6.1992 passed by the 1st Additional Sessions Judge, Deoghar in Sessions Trial No. 50 of 1991.
2. The prosecution case, in brief is that on 29.11.1990 at about 11 a.m., Meena Kumari (P.W. 4), daughter of Khedu Prasad Yadav (informant-P.W. 3) was playing with her younger brother Gouri Shankar, aged about two and half years, in a lane in front of her house situated in village LekhaBaran, P.S. Mohanpur, District Deoghar. At that point of time, the appellant came, picked up the boy Gouri Shankar and threw him into the well, as a result of which he died. The informant was harvesting the paddy in his field. His son Ashok Yadav informed him about the occurrence and, thereafter, the informant rushed to the well and found that efforts were being made by the villagers to take out the boy from the well. The water was pumped out from the well and, thereafter, the boy was found dead therein. The villagers Sukhadeo Mahto, Kailash Mahto and others told the informant that Tek Lal Yadav (the appellant), after the occurrence, was seen running away and was uttering that he had thrown the boy into a well. The informant went to the Police Station and lodged the First Information Report (Ext. 1) at 7.30 p.m., which was recorded by Bipin Bihari Prasad, Assistant Sub-Inspector of Police of Mohanpur Police Station and, thereafter, the said A.S.I. prepared on inquest report and sent the dead body for post-mortem examination and after investigation submitted charge-sheet against the appellant.
3. After the cognizance and the commitment, the appellant was put on trial, which ended in his conviction and sentence as stated above.
4. The defence of the appellant is total denial of the occurrence. His alternative defence was that he was insane at the time of occurrence and because of insanity, he was not capable of understanding the consequences of his act and even if it is accepted that the alleged act was done by him, his case is covered by the provision of Section 84 of the I.P.C. and he cannot be convicted for the offence of murder.
5. The prosecution has examined six witnesses in this case. P.W. 1 Sukhdeo Mahto and P.W. 2 Kailash Mahto are the witnesses on the point that after the occurrence the appellant was seen running away and was uttering that he had thrown the boy into the well. P.W. 3 Khedu Yadav is the informant and he is a witness on the point that he was informed about the occurrence by his son Ashok Yadav as well as by his daughter Meena Kumari, P.W. 4 Meena Kumari is the sole eye-witness, P.W. 5, Bipin Bihari Prasad was posted as the Assistant Sub-Inspector of Police and he investigated the case, P.W. 6 Dr. Purusottam Chandra has held autopsy over the dead body of the deceased boy.
6. The defence has also examined two witnesses, namely, D.W. 1 Amin Mahto and D.W. 2 Ganesh Mahto (brother of the informant and the appellant). They are witnesses on the point that the appellant used to behave take a mad man from his childhood.
7. Learned Counsel for the appellant raised two points. Firstly he submitted that the sole eye-witness of the occurrence is a child witness and his evidence is not worth reliance, specially when she gave inconsistent statements in regard to the occurrence in her evidence. Secondly, he submitted that even if the prosecution allegation is taken to be true, the case of the appellant is covered by Section 84 of the I.P.C. The evidence on the record shows that at the time of occurrence, he was of unsound mind and as such he deserves acquittal.
8. P.W. 4 Meena Kumari is the sole eye-witness to the occurrence. At the time of occurrence, she was a child and at the time of examination she was aged about 10 years. The Court put several questions to her and found that she was capable of understanding the questions and her answers were also reasonable. She in her evidence has stated that the appellant is her uncle and on the day of the occurrence, while she was playing with her younger brother aged about two and half years, the appellant came, picked him up and threw him in the well, as a result of which he died. The villagers made attempt to rescue the boy, but the same proved futile. In cross-examination, she has stated that after the appellant threw the boy into the well, she went to inform about the said fact to her family members. Thereafter, they went to inform the informant, who was working in a paddy field and her father came there from the paddy field and then the villagers also arrived there. Her evidence as a whole inspires confidence and there is nothing in her evidence to discredit her testimony. The version given by the sole eye-witness found support from other materials on the record.
9. P.Ws. 1 and 2, namely, Sukhdeo Mahto and Kailash Mahto, respectively, are the villagers and at the relevant time, they were in the khalihan and they have stated that after hulla, they found the appellant running away and he was uttering that he had thrown the boy into the well. There is no reason for the aforesaid two witnesses to make a false statement with regard to the utterances made by the appellant soon after the occurrence.
10. P.W. 6 Dr. Purushottam Chandra is the Doctor, who held postmortem over the dead body of the deceased and found that the deceased died as a result of asphyxia due to ante-mortem drawning.
11. Thus, the evidence on the record clearly proves that it was the appellant, who threw the boy into the well, as a result of which he died.
12. The next question to be determined is as to whether the appellant was instance or of unsound mind at the time of commission of the occurrence as submitted on behalf of the appellant. Two witnesses have been examined on behalf of the defence. None of the defence witnesses has stated that at the time of occurrence, the appellant was of unsound mind or insane, D.W. 1 Amin Mahto has stated that Tek Lal Yadav was behaving like a mad man since his childhood and D.W. 2 Ganesh Mahto, brother of the appellant, has also stated the same thing.
13. The trial Court has rightly rejected the evidence of the said defence witnesses. It cannot be said that at the time of occurrence, the appellant was of unsound mind or insane. P.Ws. 1, 2 and 4 have also stated that the appellant was behaving like a mad man, but they have not stated that at the relevant time, he was of unsound mind arid instance and was not capable of understanding the consequences of his act. Section 84 of the I.P.C. provides that if an act 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, then the same is not an offence. Unsoundness of mind should be at the time when the offence is alleged to have been committed.
14. Every person is supposed to know the consequences of his act and is also presumed to know the law. The burden of proving the exception in terms of Section 105 of the Evidence Act is on the accused. The accused has to prove by evidence that he was insane or of unsound mind at the time of occurrence and as such he was incapable of knowing the nature of the crime. Only two defence witnesses, as stated above, have been examined and they have only stated that the appellant was behaving like a mad man from his childhood. There is no material to show that at the relevant time, he was of unsound mind. To decide the question as to whether the appellant was insane or of unsound mind at the relevant time or not, the circumstances preceding, attending and subsequent to the occurrence are the relevant factors to be looked into. The conduct of the appellant in picking up the boy and throwing him into the well and, thereafter, uttering before the villagers that he had thrown the boy into the well sufficiently indicates that he was capable of understanding the, consequences of his act. There is no convincing material on the record to show that he was of unsound mind or insane at the time of the alleged occurrence and, thus, he is not entitled to the benefit of the provision contained in Section 84 of the I.P.C.
15. Thus, both the points urged on behalf of the appellant are without any substance. The materials on the record clearly prove that it was the appellant, who threw the boy into the well as a result of which he died.
16. Now, the question to be determined is as to whether the crime committed by the appellant is culpable homicide amounting to murder or not. The evidence on record shows that the parties were on inimical terms. The appellant came, picked up the boy and threw him into the well. This conduct of the appellant will not lead to infer that he intended to cause death of the deceased by throwing him into the well. After taking into consideration the totality of the circumstances, the offence alleged to have been committed by the appellant is a culpable homicide not amounting to murder and for which he is liable to be punished under Section 304 Part-II of the I.P.C. The materials on the record show that the appellant is in jail since 21.12.1990 i.e., more than nine years. The aforesaid period, in our view, will meet the ends of justice if his sentence of life imprisonment is reduced to the period already undergone by him.
17. Accordingly, the conviction of the appellant is altered from Section 302 of the I.P.C. to one under Section 304, Part-II of the I.P.C. and his sentence of life imprisonment is reduced to the period already undergone by him.
18. In the result, this appeal is dismissed with the modification in the conviction and sentence as indicated above. Since the appellant is in jail, let him be set at liberty forthwith if he is not required to be detained in any other case.