R.P. Awasthy, J.
1. It is an appeal against holding of the accused appellant-guilty for committing an offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life.
2. Prosecution case is that on 17-12-1985 at about 7.00 p.m., Ramadhin was running here and there while armed with an axe. Punitram (since deceased) and Jagdev (PW/2) followed the accused with the object of snatching axe from him, lest he might cause any injury to anyone. They met the accused on a turning of lane where the accused/appellant dealt a blow by means of an axe on the head of Punitram. The said incident was witnessed by Jagdev (PW/2) Ramkumar Sahu (PW/6), and Chandrahas (PW/7). When Tulsiram (PW/1) came to know about the said incident, he came to the place of incident and found that there was an injury on the head of Punitram, which was profusely bleeding. Tulsiram took Punitram to Government Hospital, Dhamtari, but on medically examining Punitram, the doctor on duty declared him as dead. Thereafter on 17-12-1985 itself at 9.00 p.m. Tulsiram (PW/1) lodged the first information report (Ex.P/1) at police station Arjuni. On the same date, Shri S. N. Pateria (PW/16), reached the place of the incident after recording the said first information report. He seized blood stained and plain earth from the place of the incident as per seizure memo (Ex.P/5).
3. Immediately, after the incident, the accused was apprehended by Chandrahas (PW/7) and Ramkumar (PW/6). They pressed accused Ramadhin against the well. At that time Jagdev, who had fled away from the place of the incident immediately when the accused had dealt a blow by means of an axe on the head of Punitram, returned to the place of the incident. Ramkumar and Chandrahas asked Jagdev (PW/2) to snatch the blood stained axe from the accused. Jagdev snatched the said axe, and then Ramkumar took the accused away from the said place. Thereafter, at the cross road of the same village Potiyadih, Jagdev entrusted the said axe to Chandrahas (PW/7). Chandrahas entrusted the said axe to Pyari Kotwar (PW/8), who came at the place of the incident on receiving the information about it. In turn, when Sub-Inspector, Shri S. N. Pateria (PW/16), came to the place of incident Pyari Kotwar (PW/8) handed over the said axe to Shri Pateria, who seized the said blood stained axe as per seizure memo (Ex.P/2).
4. Thereafter, on 18-12-1985, Shri S. N. Pateria (PW/16) conducted death inquest as per seizure memo (Ex.P/4) at Police Station Arjuni and soon thereafter, the dead body of Punitram was sent to Government Hospital, Dhamtari, where doctor A. Quadeer (PW/15), conducted post mortem examination on the dead body of Punitram. Dr. Quadeer found that all the 3 layers of the brain were cut and there was fracture of skull bone. There were multiple fractures on the ribs Nos. 6 to 10, on right side, and the right lung was also injured and was deeply congested below the fractured ribs. There-was rupture of upper lobe of liver as well.
5. Blood stained clothes of deceased Punitram were seized as per seizure memo (Ex.P/6). One underwear was seized from the person of the accused as per seizure memo (Ex.P/18). The accused also complained that he had sustained some injuries. He was sent to Civil Hospital, Dhamtari, where he was medically examined by doctor A. K. Rawat, on 19-12-1985 at 1.45 p.m., who found that the accused was complaining pain on his back, and abrasion with scab formation over left shoulder region and abrasion with scab formation over left buttock were found. In the opinion of doctor Rawat, the said injuries were of 24 to 36 hours duration.
6. After completion of investigation, a report under section 173, Criminal Procedure Code was filed in the Competent Court. The accused denied the said allegations and submitted that he did not know anything about the incident. He was lying unconscious as Jagdev had beaten him. Punitram intervened in the said incident and therefore, he sustained an injury, while intervening in the said incident.
7. After recording evidence in the case, the trial Court held the accused guilty and sentenced him as detailed above.
8. Three fold argument has been advanced for the accused/appellant which shall be taken in this judgment one by one. Firstly, it has been argued that the evidence available on record is not sufficient to connect the accused with the guilt. In support of this contention, it has been argued that the first information report lodged by Tulsiram is a subsequent creation and, therefore, in view of the pronouncements of the Apex Court reported in Pattipati Venkaiah v. State of Andhra Pradesh, AIR 1985 SC 1715, and Padamanabhan Vijay Kumar @ Vijayan v. State of Kerala, AIR 1993 SC 2641, the entire edifice of the prosecution case collapses.
9. We are unable to agree with this argument; firstly, there is nothing in the present case to indicate that the first information report was lodged by Tulsiram, on account of some ill-will or enmity and some false or concocted version was narrated therein just to falsely implicate the accused, Therefore, the first information report in the present case, cannot be said to be a created or concocted document within the meaning in which the said words have been used in the cited authorities (supra). Secondly, it has to be seen that the first information report would not become spurious document, if in the said first information report, some more facts than the facts narrated in the Court by the lodger of the first information report, are mentioned. It is quite probable that the incident being fresh in the mind of the lodger of the first information report, he may narrate the incident in greater details and may not remember them due to lapse of memory, after a considerable time of the incident, when he deposed about the incident, as a witness in the Court. It is also probable that due to other reasons such as misplaced sympathy towards the accused, the lodger of the first information report may not stick to the version given in the first information report. Under the said circumstances, the prosecution case would not be outright discarded, even when there may be reliable evidence available on record, simply because the lodger of the first information report has not given the same version in the Court as had been narrated in the first information report. Thirdly, it is also probable that out of overzealousness or due to lack of knowledge of law or common sense, a police officer may include in the first information report, certain facts which might not have been mentioned by the lodger of first information report, while lodging it. Under this circumstance also, if there be other reliable evidence available on record, the Court would not discard the said reliable testimony available in the case, merely on the ground of such failure of duty on the part of the police officer, who recorded the first information report.
10. Now, in the present case, as has already been mentioned there is absolutely nothing to indicate that Tulsiram bore any grudge against the accused or he got the first information report created and concocted merely to falsely implicate the accused. Some omissions or the discrepancies in the version given by Tulsiram in the Court and the version narrated in the first information report, would not make prosecution case unworthy of credence, if there is reliable evidence available on record.
11. It has also to be seen that Tulsiram, the lodger of the first information report in the present case was not an eye witness of the incident and the discrepancies pointed out in the version narrated by him in the Court and the version mentioned in the first information report are not such as to hold that the first information report recorded in the present case is a spurious document, which is created just to falsely implicate the accused/appellant. Consequently, AIR 1985 SC 1715 and AIR 1993 SC 2641 (Para No. 4), the authorities referred above, are not applicable on facts of the present case.
12. It has been argued that the trial Court has relied upon the solitary testimony given by Jagdev (PW/2). It has further been argued that when a prosecution case hinges upon the version given by a solitary witness, the said witness should be wholly reliable. Jagdev (PW/2) is not such. a witness as his evidence is, according to the learned counsel for the appellant contrary to the medical evidence available on record.
13. The said submissions have absolutely no substance. It is totally wrong to say that the trial Court has relied upon the version given by Jagdev alone. The trial Court has relied upon the testimony given by all of the material witnesses examined in the case. It has further to be seen that there is overwhelming evidence available on record to conclusively establish that it was the accused and the accused alone, who had inflicted the injuries found on the body of. Punitram. Bhudwantinbai (PW/3), widow of Punitram and Gitabai (PW/4), daughter of Punitram have deposed that the accused had come to their house inquiring about the whereabouts of Punitram. Gitabai has further deposed that the accused was saying that he would beat or kill Punitram. They have not been confronted with the diary statement given by them and therefore, it has to be inferred that their testimony is consistent. There seems to be no reason also as to why they would falsely implicate the accused.
14. Kantibai (PW/10) has deposed that she saw Ramadhin (accused) armed with an axe, going in the direction of the place of the incident. She has further deposed that Ramadhin abused someone and said that he could catch hold of him at that time. Soon thereafter, Punitram (since deceased), raised an alarm by shouting that he be saved. Thereupon, Kantibai also raised an alarm by shouting that the accused was causing injuries to Punitram.
15. Jagdev (PW/2), who was accompanying Punitram has deposed that when the accused met them, the accused dealt a blow by means of an axe on the head of Punitram. On seeing the said incident, he fled away out of fear, from the place of the incident, shouting that the accused was causing hurt to Punitram. Ramkumar (PW/6) and Chandrahas (PW/7) have deposed that when they heard alarm raised by Jagdev (PW/2) and Kantibai (PW/10) respectively, they reached on the place of the incident simultaneously, from the side of Durga Chowk. They both saw that the accused was dealing blows from the blunt side of the axe on the back of Punitram, who was lying on the road, It is correct that in their diary statement (Ex.D/3) and (Ex.D/4), only this much is mentioned that Punitram was lying injured on the place of the incident and the accused/appellant, Ramadhin armed with an axe was standing there. Nevertheless, the said omission is not such as to make the entire version given by the said two entirely independent witnesses, unworthy of credence.
16. Ramkumar (PW/6) and Chandrahas (PW/7) have given a consistent version that immediately after the incident, Ramkumar caught hold of the accused from behind and soon thereafter, Chandrahas also helped Ramkumar in apprehending the accused. Jagdev (PW/2) has deposed that when he found that the accused has been apprehended by Ramkumar and Chandrahas, he mustered courage and returned to the place of the incident. Ramkumar and Chandrahas have corroborated Jagdev on this aspect. The consistent testimony given by Jagdev is further corroborated by the testimony given by Ramkumar and Chandrahas, who all have deposed that when the accused/appellant was apprehended by Ramkumar and Chandrahas, Jagdev (PW/2) snatched, axe from the accused. Thus, there is overwhelming evidence available on record to establish that it was the accused and the accused alone who had inflicted the said injuries on the person of Punitram.
17. It is also totally incorrect that the version given by Jagdev is in any way contrary to the medical evidence. It has already been mentioned that Jagdev has given a consistent version to the effect that as soon as the accused inflicted blow by means of an axe on the head of Punitram, he fled away from the place of the incident. Therefore, Jagdev did not see the accused/appellant inflicting other injuries on the person of Punitram. Nevertheless, the accused/appellant remained present along with Punitram on the place of the incident, according to the version given by Jagdev as well. Therefore, the . natural inference would be that the remaining injuries were also caused by the accused/appellant on the person of Punitram. Hence, it cannot be said that since Jagdev has deposed only about seeing only one injury being inflicted on the person of Punitram, his version is in any way discrepant or contrary to the medical evidence available on record.
18. Thus, first part of the argument advanced for the accused/appellant to the effect that the prosecution has not succeeded in establishing that it was the accused and the accused alone, who had inflicted the injuries found on the body of the deceased is totally and obviously not acceptable. It is held that by overwhelming evidence available on record, it is conclusively established that it is the accused and the accused alone, who had inflicted the said injuries on the body of Puntiram.
19. In the second limb of the argument advanced for the accused/appellant, it is said that though it is correct that plea of the accused being of unsound mind has not been taken by the learned counsel for the defence, yet, it has to be seen that the conduct of the accused was far from being normal. The evidence in the present case goes to indicate that the accused was mentally disturbed at the time of incident and that is why, the accused allegedly voluntarily caused injuries to his friend Punitram without any rhyme or reason. Relying on the observation made in K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 and Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 it has been argued that the prosecution failed to establish necessary ingredient of intention or knowledge, or in other words necessary mens rea on the part of the accused in committing the said Criminal Act, and hence, the accused is entitled to be acquitted.
20. In reply, it has been argued for the prosecution that there is absolutely nothing on record to indicate that the present case would be covered by the general exception enumerated under section 84, Indian Penal Code. From the medical evidence available on record, it is established that the accused had caused such injuries that three vital organs of the body of Punitram, to wit, his brain, his right lung and liver were respectively cut, injured and ruptured. Each of the said injuries was sufficient in ordinary course of nature to cause the death of Punitram. Therefore, it has to be inferred that either the accused had the intention to kill Punitram or had the knowledge that he would thereby kill him. Consequently, it was for the accused to establish that he was not within his senses when he committed the said offence. The accused did not even take the said plea in defence and in absence of any medical or direct evidence, that the accused was insane at the time of incident, it cannot be held on the basis of mere guess or surmises that the accused had neither any intention to kill nor any knowledge that while inflicting such fatal injuries on the person of Punitram, he would kill him.
21. In this regard, it has to be seen that it is a settled principle of law that the law recognises nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently clear to apprehend what he is doing, he must always be presumed to intend the consequences of the action he takes. It is also a settled principle of law that mere absence of motive for a crime, howsoever, atrocious it may be, cannot in the absence of plea and proof of legal insanity bring the case within the exception of section 84, Indian Penal Code. The mere fact that an act of murder was committed by the accused on a sudden impure and there was no discoverable motive for the act will not generally afford the court sufficient basis for accepting the plea of insanity. In S. W. Mohammed's case, 1972 Cr.L.J. 1523 (SC), the Apex Court held that mere fact that no motive had been proved as to why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that the accused was insane or that he did not have the necessary mens rea for committing the offence.
22. In the present case, the accused had gone to the house of Punitram in search of him with the intention of causing injuries to him, or, may be, with the intention of committing his murder. When he met Punitram on the way, he said that he could catch hold of him at that time. Thereafter, the accused dealt one blow by sharp side of the axe on the head of Punitram on account of which all the three layers of the brain of Punitram were found cut. He, thereafter dealt multiple blows by the blunt side of the axe, on account of which 6 to 10 ribs on right side and 6. to 9 ribs on the left side were fractured and the right lung was found injured and deeply congested while the upper lobe of the liver was found to be ruptured.
23. It is no doubt true that there appears to be no motive for committing the said crime. It is also absolutely correct that the Criminal Act committed by the accused is not rational. From the evidence available on record even this much can be said that conduct of the accused was not in accordance with normal human behaviour. Jagdev (PW/2) has deposed that when he and Punitram heard the cries of ladies that Ramadhin was running armed with an axe, they proceeded for snatching the axe from the accused lest he might cause any injury to any person.
24. But these facts by themselves would not go to indicate that the accused was not conscious that he was doing an act which he ought not to do. There is not a single whisper in the entire case that the accused was suffering from any mental disorder, from before. Therefore, in absence of the plea of legal insanity it cannot be said that the accused did not have the necessary mens rea for committing the offence. It is so because there is a difference between medical insanity and legal insanity. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under section 84, Indian Penal Code and in order to constitute legal insanity unsoundness of mind must be such as to make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law.
25. In Lala S.K. v. The State, 1983 Cr.L.J. 1675, this aspect has been considered. In para No. 11 at page 1679, referring the cited authority Dahyabhai v. State of Gujarat, AIR 1964 SC 1563, it has been observed that 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 can be said to have discharged his burden. The evidence which was placed before the Court, may not be sufficient to discharge the burden under section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. The burden of proof upon the accused is not higher, than that rests upon a party to a civil proceeding. Keeping these principles of law propounded in the authority of the Apex Court, the evidence available on record was weighed and appreciated by the Division Bench of the Calcutta High Court in the said authority. In the said case, it was found that there was the history of mental derangement of the accused/appellant and victim of the incident was done to death by inflicting as many as twelve injuries for a trivial thing, viz., the taking of a jute string from the field of the accused.
26. Appreciating the evidence available on record, even under the said circumstance, the Division Bench of the Calcutta High Court found that the accused was conscious of his property right. He prevented a prosecution witness from following him and the deceased. He ran away from the place of the incident after the occurrence and was seen to have washed the garments and the stains from the weapon of offence. These and other circumstances indicated that the accused might be suffering from some mental disease but there is distinction between medical insanity and legal insanity. Since, it is only the legal insanity which furnished a ground for exemption, the accused cannot be absolved. There can be no legal insanity unless, the cognitive faculties of the accused are, as a result of derangement or unsoundness of mind, completely impaired.
27. In the result, it is not correct to say that in the present case, the prosecution has failed to establish that the accused did not have the necessary mens rea or necessary intention or knowledge for committing the offence of murder of Punitram.
28. Third limb of the argument advanced for the accused/appellant is that there is no explanation of the injuries sustained by the accused and therefore, it should be held that the appellant is guilty only for exceeding the right of private defence exercised by him. It is however, incorrect that there is no explanation of the very minor injuries sustained by the accused. Ramkumar (PW/6) and Chandrahas (PW/7) have given consistent statements that when they found the accused armed with an axe, present near injured Punitram, they apprehended him. Their testimony is corroborated by Jagdev (PW/2), who and the above referred two witnesses have deposed that Jagdev (PW/2) snatched axe from the accused. Doctor A. K. Rawat (DW/2) has admitted that such abrasions as were found on the shoulder and buttock of the accused could have been caused in a scuffle. Over and above it Chandrahas (PW/7) has deposed that he and Ramkumar had pressed the accused against a wall when they had apprehended him. He (Chandrahas) has not been cross-examined on the said aspect and therefore, there is no reason to disbelieve the said version given by Chandrahas (PW/7). The injuries found on the back side of the body of the accused could have had obviously been caused by pressing him against a wall.
29. Further, the prosecution is not duty bound to explain every injury found on the person of the accused even when it may be very insignificant or superficial in nature. Consequently, this third limb of argument advanced for the accused/appellant is also not acceptable.
30. In the result, the appeal filed by the accused is disallowed and the finding given and sentence awarded by the trial Court are maintained.
31. The order passed by the trial Court regarding disposal of the articles is also maintained.