Pralhad Mukinda Kshirsagar vs State Of Maharashtra
2001 Latest Caselaw 463 Bom

JUDGMENT

J.N. Patel, J.

1. The appellant has challenged his conviction and sentence for having committed offence punishable under Section 302 of the Indian Penal Code by the Sessions Judge, Buldana in Sessions Trial No. 47/1995, by his judgment and order dated 24.7.1995. In nutshell, it is the prosecution case that on 2.11.1994 at about 11:00 a.m., the appellant went to the place where the three sisters i.e. deceased Gokulabai, Asha and Punjabai had gone to outskirts of the village to attend nature's call and were sitting on road side to defecate. The appellant was armed with an axe. He assaulted Gokulabai with the axe by giving three blows on her head. Thereafter, he went and sat on a heap of stone rubble lying there. Punjabai who was about 10/11 years old, ran to her house and narrated the incident to her mother that Pralhad has given blow to Gokula with axe. On this, Lilabai, the mother of the victim, came running to the place and saw Gokula lying there. The appellant was standing nearby with hands back, holding an axe. So, she lifted Gokula and brought her to the house. The persons from the village came running to the house. Sopan Borse (P.W. 1) took Gokula on his shoulders and he, along with Rajesh Kapse went to Dhanora. From Dhanora, they took an autorickshaw in order to go to Malkapur. On the way near Dhanora Phata, they saw one Police Vehicle coming, so they stopped the rickshaw and told the police that the appellant assaulted Gokula and injured her. P.I. Syed Gayasuddin (P.W. 10) informed him to give a report to the Rural Police Station and that they will proceed to arrest the accused person. So he took Gokula to the Police Station and gave information to the Police. The report was taken down as F.I.R. (Exhibit 10). By the time Gokula was brought, to the Police Station, she has died, therefore, after the inquest panchanama (Exhibit 8) was prepared, her body was sent to Medical Officer for post-mortem examination.

2. P.I. Syed Gayasuddin arrested the appellant/accused and seized the axe produced by one Vasant Bonde under seizure panchanama (Exhibit 26) Dr. Uttam Jadhav (P.W. 2) conducted the post-mortem on dead body of Gokula d/o Rambhau Borse. The post-mortem report is at Exhibit 12 in the opinion of the Medical Officer, death was due to head injury with intracranial haemorrhage over crushed lacerated brain injury. The Investigating Officer carried out the necessary investigation and after completing the investigation, filed charge-sheet against the appellant/accused for having committed offence under Section 302 of the Indian Penal Code.

3. The case of the appellant was taken up for trial by the Sessions Judge, Buldana who framed the charge (Exhibit 2) on 6.5.1995. The appellant rather pleaded guilty by admitting the charge and stated that he was holding an axe which hit the victim and she died. The learned Sessions Judge thereafter put further questions in order to ascertain as to why the accused is pleading guilty to the charge of murder. But the appellant was very specific and he told that he is in sound state of mind and not under pressure nor suffering from any mental illness and that he can read and write. He also stated that Advocate has been engaged through his son-in-law and gave the name of the Advocate Shri Dhage and he does not want to engage an Advocate. The learned Sessions Judge did not accept the plea of guilty and felt that accused deserves to be tried. In support of the case, the prosecution examined the eye witnesses and also relied upon the forensic and medical evidence. The learned Sessions Judge found that the accused is guilty of having committed an offence under Section 302 of the Indian Penal Code.

4. During the trial, an attempt was made on the part of defence to take a plea of insanity of the accused, but it was negatived by the learned Sessions Judge, who, having found him guilty under Section 302 of the Indian Penal Code, convicted and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 100.00 in default, to suffer R.I. for one month.

5. It is submitted by Mr. Daga, learned counsel for the appellant that the manner in which the heinous offence of murder has been committed by the appellant i.e. killing a girl who was 7/8 years old, itself goes to show that the appellant is a maniac and abnormal person, who, by reason of unsoundness of mind, was incapable of knowing the nature of the act committed by him. It is submitted that the learned Sessions Judge did not approach the case properly in order to ascertain as to whether the accused did suffer from unsoundness of mind or not. It is submitted that the conduct of the accused in coming to the scene of offence armed with an axe and without uttering a single word, assaulting the child of 7/8 years, with the axe and not fleeing away and reacting in any manner, which will be expected of a normal person, all go to show that the case of the appellant deserves to be considered within the exception provided under Section 84 of the Indian Penal Code.

6. Mr. Daga, learned counsel for the appellant further submitted that the prosecution has failed to prove mens rea in this case nor the matter was investigated thoroughly so as to find out the cause why the accused committed murder of a girl child. It is submitted that in absence of motive and intention, the accused cannot be convicted for having committed an offence under Section 302 of the Indian Penal Code and he deserves to be acquitted.

7. Mr. Daga, learned Counsel for the appellant submitted that the weapon of assault-axe was also not seized from the accused and to the circumstances. It will be most unsafe to convict the accused for having committed an offence under Section 302 of the Indian Penal Code.

8. Mr. Thakre, learned Additional Public Prosecutor submitted that there is no material on record to show that the appellant suffers from unsoundness of mind. According to Mr. Thakre, the prosecution has sufficiently proved the case against the appellant, of having committed murder of an innocent victim, a child who was of tender age, with an axe and that too on vital part of the body i.e. head, which caused fatal injury, is sufficient to show that the blows were given by the appellant/accused so as to kill the victim. This establishes the necessary mens rea required to find, that the accused is guilty of having committed the murder.

9. Mr. Thakre, learned A.P.P. further submitted that merely because there is no motive brought on record as to why the appellant has committed murder of a girl of tender age, would itself not exonerate the appellant/accused. It is further submitted that the case of the accused does not fall within the exception provided under Section 84 of the Indian Penal Code. Mr. Thakre places reliance in the case of Laxmandas Mangaldas Manikpuri v. State of Maharashtra 1997 (1) Mh.L.J. 435, in order to show that the onus was on the accused to bring the case within the exception who has taken the plea of insanity.

10. Mr. Thakre, learned A.P.P. submitted that the prosecution has examined eye witnesses to the incident, one of whom is the sister of the victim, who was very much present at the scene of offence when the appellant assaulted her younger sister and the other person Prabhakar Vitthal Takarde (P.W. 6) who has also seen the accused giving blows with axe to Gokula. Nothing has come on record to show that the witnesses are not truthful. It is submitted that all the witnesses examined by the prosecution were questioned on the point of unsoundness of mind of the accused but they have specifically denied the same. The evidence on record does not show in any manner that the accused suffered from such disability so as to call a lunatic or insane. It is therefore submitted that the appeal deserves to be dismissed.

11. The fact that the victim died the homicidal death is not in dispute. Dr. Uttam Jadhav (P.W. 2) conducted autopsy on the body of Gokula daughter of Rambhau Borse and found following external injuries.

(1) C.L.W. over haematoma left side at the parietal region of the scalp parasagital in position 1 × 1/2 × 1/2 cms. with irregular margins and everted edges over haematoma of 5 × 5 cms. around the C.L.W. The C.L.W. before backwards in direction.

(2) C.L.W. left occipital region over haematoma 2 × 1/2 × 1/2 cms. Above downwards and looks elliptical edges everted with irregular margins. Haematoma around the C.L.W. below the injury of the size 4 × 4 cms.

(3) Contusion left ear pinna upper portion of it with size of 3 × 1/2 cms. looks bluish in colour.

According to Dr. Jadhav, all these injuries were ante-mortem and can be caused by hard and blunt object i.e. with the blunt portion of the axe. The doctor found evidence of blood clots under the injuries mentioned in column No. 17 of the post-mortem report (Exhibit 12). He found evidence of crushed depressed of the left occipital parietal area of the skull inthrupture of the membranes left side 6 cms. in length and fracture size 13 × 8 cms. into multiple pieces up to occipital protuberence. Cerebral hemisphere was found pierced out from the ruptured membranes with contusion of both the cerebral hemispheres over crushed laceration of the left cerebral hemisphere parietal with evidence of Intracranial haemorrhages over blood clot at the both cerebral hemispheres over the parietal region and also found cut section of the brain haemorrhaged. In the opinion of doctor, the cause of death was head injury and intracranial haemorrhage over crushed lacerated brain injury.

12. As regards ocular evidence led by the prosecution Punjabai (P.W. 3), sister of the victim Gokula, gave evidence that on the day of the incident at about 11.00 a.m. she along with her sisters Asha and Gokula had gone to answer nature's call to a place known as "Godri" and also stated that accused Pralhad Mukinda came there and gave blow with axe to her sister Gokula. At that time, they were all sitting together. She has specifically stated that blow was given with the blunt portion of the axe and three blows were given. She had identified the appellant/accused as the person who assaulted her sister and also stated that after the blows were given, she went to the house and told her mother that Pralhad Mukinda gave blow with axe, on which her mother came running to the scene of offence and then Gokula was brought to the house. She stated that after the assault, Gokula was not able to speak in cross-examination of this witness, an attempt was made to show that accused was lunatic, but she specifically denied that Pralhad Mukinda does not wonder like a lunatic in the village and that nobody calls him lunatic. She has specifically denied in her cross-examination that she was tutored by her parents to depose.

Another witness to the incidence is Lilabai w/o Rambhau Borse (P.W. 7), mother of Gokulabai and Punjabai. She sufficiently corroborates the evidence of Punjabai as to the fact that Punjabai who came and informed her that accused has given blow with axe to Gokula, and when she rushed to the scene of offence, they found that Gokula was lying there and the accused/Pralhad was standing with his hands back holding axe there, and, therefore, she lifted Gokula and went to the house. To this witness also an attempt was made to show that the appellant was insane. Though this witness accepted that the accused was not talking to anyone and was seeing in one direction and was not making any movement, she has specifically denied that he was mad and that he suffers from the attack of lunancy occasionally.

Prabhakar Vitthal Takarde (P.W. 6) gave evidence that on the day of incident at about 11.30 a.m. he was returning to his house from his farm when he saw three girls defecating. One of them was Gokula. He saw Pralhad coming and delivered a blow with axe on the head of Gokula. According to him, the incident took place near the house of Suresh Dipchand Bonde and when Pralhad delivered blow with axe, he was at a distance of 25 to 30 ft. from him and according to him, after giving the blow to Gokula, Pralhad came on the road and stood there and then he went back to his farm. He was contradicted on the point that there were three more women sitting nearby for attending nature's call and omission that the incident took place near the house of Suresh Dipchand Bonde. Except for this, the evidence of this witness is not much demolished. This witness has also denied that the appellant/accused was mad. He has specifically denied the suggestion that when he first saw Pralhad, he was standing in front of Gokula and was dancing like a mad man. Therefore, presence of this witness and having seen the incident is not much disputed. This witness has stated that Pralhad was known in the village as 'Sadhuba' but denied that he behaved like a lunatic.

In addition to evidence of this witness the prosecution has examined Sopan, who is a person who took Gokula on his shoulders to Malkapur and having come across a Police Vehicle, gave information about the offence to P.I. Syed Gayasuddin and has lodged the report. Even this witness has denied that the appellant was lunatic. The scene of offence and seizures done by the Police is not much disputed.

13. Considering the evidence on record, we have no hesitation that the accused has committed murder of Gokula by giving her blows with the blunt side of the axe. Now let us examine as to whether the accused, at the time of committing the offence, was labouring under the defect of reason owing to disease of mind, was not knowing the nature and quality of the crime. We do not find that in the given facts and circumstances, the accused suffered from legal infirmity at the time when the offence was committed. None of the witnesses of the prosecution, when questioned about this, has stated that the accused was a mad person. On the other hand, it has come on record that the accused has a family and owns agricultural land which he cultivates personally, that the accused attends to his routine business as a sane person. Even the accused, when questioned by the Court while recording his plea of guilty, has specifically denied that he is a person of unsound mind. Except for the unusual nature in which the accused killed the victim, there is no iota of evidence or material before the Court so as to draw an inference that the accused was suffering from unsoundness of mind. The learned Sessions Judge had an occasion to see the accused and examine him and did not find that the accused was a person suffering from unsoundness of mind nor the accused personally raised plea of insanity. It is his counsel who has tried to make out the case, by putting the suggestion to the witnesses examined by the prosecution, and none of the witnesses including independent eyewitnesses i.e. villagers have supported the plea of insanity taken by way of defence. The contention of Mr. Daga, learned counsel appearing for the appellant therefore went on mens rea motive and contended that the only inference that can be drawn is that the accused was suffering from unsoundness of mind and he has killed the girl of tender age for no reason. Well, this cannot come to the rescue of the appellant. In the case of Laxmandas Mangaldas Manikpuri v. State of Maharashtra (supra), this Court had an occasion to deal with the plea of insanity and in para 8 of the reported judgment, held as under:

Section 84 of the Indian Penal Code states that 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. It is settled position that though the onus of establishing the prosecution case is on the prosecution and it never shifts, when the accused raises a plea of the said exception, the Court is bound to presume non-existence of such an exception because of Section 105 of the Evidence Act. Section 105 of the Evidence Act enjoins that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Thus, the burden is on the accused to establish the circumstance that he was, at the time of commission of the offence, by reason of unsoundness of mind incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. Though the prosecution has to discharge its burden beyond the shadow of reasonable doubt, accused need discharge the said burden by preponderance of probability. In a given case, even when the accused has not led the evidence, he can rely on the very prosecution evidence in his endeavour to discharge the burden under Section 105 of the Evidence Act. In the decision in Kuzhiyaramadivil Madhavan v. State 1994 Cri.L.J. 450 : 1992 (1) Crimes 1227 : 1992 (1) Ker.L.J. 508 : 1992 (1) Ker.L.T. 544 : (1992) 2 Cur. Cri. R. 1932, the Division Bench of the Kerala High Court has dealt with the nature of burden which an accused, who claims benefit under Section 84 of the Indian Penal Code, has to discharge. It is held therein that every person is presumed to know the law and the natural sequence of his act, and Section 105 of the Evidence Act enjoins that the Court shall presume the absence of the exception. Therefore, the prosecution in discharging burden, need prove the basic facts and can rely upon the normal presumption. In other words, the prosecution is not bound to show that the accused at the relevant time was not insane. The said decision, amongst other things, states that, simply because no motive is proved, that by itself cannot show that the accused was suffering from mental malady which would amount to legal insanity. In other words, sheerly because there is no evidence as to motive, it cannot be inferred that the impugned act was of a mad man. In Madhavan's case 1994 Cri.L.J. 450, one of us (Manoharan. J.) speaking on behalf of the Bench said:

Every mental aberration cannot constitute legal insanity. Every type of insanity cannot amount to legal insanity, unless it is shown that his mental condition was such that it destroyed his capacity to understand the nature of his action. Minor mental aberration, hot temperament, lack of self control or feeling easily provoked are not sufficient to absolve one from the liability of his act. Thus, what is crucial in such circumstance is, his mental condition at the time of commission of the offence. In that regard his conduct immediately before and after the occurrence may be of relevance. If the accused has a previous history of mental disease that also would be a relevant factor in considering the probability of the case pleaded.

We have no reason to hold otherwise after examining the material brought on record and the evidence led by the prosecution.

14. To conclude, we have no hesitation that the finding of the Sessions Judge that the accused is guilty of having committed murder of Gokula is proper, and, therefore, the conviction and sentence passed by the Sessions Judge does not call for any interference. Appeal is dismissed.