AFR

Reserved on 23.08.2022

Delivered on 22.09.2022

In Chamber

Case :- JAIL APPEAL No. - 358 of 2018

Appellant :- Ramesh Yadav

Respondent :- State of U.P.

Counsel for Appellant :- From Jail,Amit Kumar

Srivastava

Counsel for Respondent :- A.G.A.

Hon'ble Anjani Kumar Mishra,J.

Hon'ble Umesh Chandra Sharma,J.

(Delivered by Hon'ble Umesh Chandra Sharma,J. )

1.This appeal has been preferred by the convicted

accused Ramesh Yadav against the judgment and order

dated 05.06.2017 passed by the Additional Sessions

Judge/FTC, Bhadohi, Gyanpur.

2.By the impugned judgment, the learned trial court

awarded following sentences to the accused:-

(I).Under Section 302 IPC rigorous imprisonment of life

sentence and a fine of Rs.10,000/-;

(II)Under Section 324 IPC rigorous imprisonment of

three years;

(III)Under Section 307 IPC rigorous imprisonment of ten

years and a fine of Rs.10,000/-.

3.In brief, facts of the case are that on 16.02.2016

informant Banarsi son of Ram Nath resident of Mavaiya,

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PS Gyanpur, District Bhadohi moved a written tahrir

(Ex.Ka-1) that his son Ramesh Yadav today at about 12

O'clock had badly injured his wife Sukhraji Devi from a

sharp edged weapon. He has admitted his wife for

treatment in Gyanpur Government Hospital.

4.On the basis of written tahrir (Ex.Ka-1) a chick FIR

(Ex.Ka-19) in Case Crime No.24 of 2016 under Section

324 IPC was registered and entered in GD (Ex.Ka-18).

After death of injured Sukhraji Section 302 IPC was added

through paper Ex.Ka-8.

5.PW-6, SSI Ram Adhar Yadav, Investigating Officer

visited the place of occurrence and prepared map (Ex.Ka-

6) recorded the statement of the informant and other

witnesses and after finding sufficient evidence submitted

the charge-sheet (Ex.Ka-14) under Sections 324, 307, 302

IPC against the accused. The case was committed to the

Court of Sessions on 12.05.2016 and was transferred to

the Court of Additional Sessions Judge/FTC, Bhadohi who

framed the charges on 26.05.2016 from which the

accused denied and requested for trial.

6.The witnesses who have been examined from the

side of the prosecution are: (i) PW-1, Banarsi, informant;

(ii) PW-2, Meena Devi, an independent witness; (iii) PW-3,

Bindu Devi, sister of the accused; (iv) PW-4, Om Prakash,

an independent witness; (v) PW-5, Dr. Girish Chand Rawat

who examined the deceased before her death and also

PW-3, Bindu Devi (injured); (vi) PW-6, Ram Adhar Yadav,

Investigating Officer; (vii) PW-7, Raghvendra Singh, the

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then SO of PS Gyanpur; (viii) PW-8, Amar Bahadur Singh,

autopsy doctor; and (ix) PW-9, Jitendra Kumar, Constable.

7.The documentary evidences which have been

produced from the prosecution side are: (i) Ex.Ka-1, tahrir

of the informant; (ii) Ex.Ka-2, inquest; (iii) Ex.Ka-3,

recovery memo; (iv) Ex.Ka-4 and 5 both photocopy of

injury report; (v) Ex.Ka-6, map; (vi) Ex.Ka-7 and 8,

certified copies of GD; (vii) Ex.Ka-9, police Form-13; (viii)

Ex.Ka-10, photonash; (ix) Ex.Ka-11, letter to CMO; (x)

Ex.Ka-12, letter to RI; (xi) Ex.Ka-13, photonash; (xii)

Ex.Ka-14, charge-sheet; (xiii) Ex.Ka-15, arrest memo; (xiv)

Ex.Ka-16, letter to Director, FSL, Varanasi; (xv) Ex.Ka-17,

post mortem report; (xvi) Ex.Ka-18, carbon copy of GD

dated 16.02.2016 regarding lodging of FIR; (xvii) Ex.Ka-

19, chick FIR; and (xviii) Paper No.Ka-27, report of FSL

which is not exhibited but being public document it is

admissible and exhibitable under Section 293 CrPC.

8.The applicant has taken following grounds :-

(i) that the judgment is against the fact and law;

(ii) that there are material contradiction in the evidence of

eye-witnesses which has not been considered by the lower

court, therefore, the impugned judgment and order is not

sustainable on this ground alone;

(iii) that the excessive punishment has been provided

which is against the rules established by law;

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(iv) that the learned trial court has convicted the

appellant relying on inadmissible evidences and has

ignored admissible evidences;

(v) that the prosecution has not been successful in

proving the prosecution story beyond doubt;

(vi) that the prosecution could not establish the place of

occurrence and the person who committed the offence;

(vii) that the lower court has not appreciated the

evidenced in accordance with law, therefore, the

judgment of conviction dated 05.06.2017 be quashed and

appeal be allowed.

9.In brief, evidences of PWs are reproduced herein

below:

9.1.PW-1, Informant – Banarsi, father of the accused

appellant and husband of the deceased has deposed that

on 16.02.2016 at about 12 O’clock his wife Sukhraji Devi

was washing clothes at the well. Ramesh, hiding an axe,

reached there and asked to clean his clothes, she replied

that today she was busy in some domestic work, she

would clean the clothes tomorrow. Hearing this, Ramesh

started attacking at her from the axe. Her daughter Bindu

Devi came there to save her mother, Ramesh also caused

injuries to her 2-3 times from the axe. Both the injured

were admitted in Gyanpur Government Hospital

thereafter he reached police station for lodging an FIR.

This witness has proved paper no.5 (tahrir), Ex.Ka-1. He

further deposed that Investigating Officer had recorded

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his statement. He had pointed out the place of occurrence

to Investigating Officer. District Hospital, Gyanpur

referred the patient to BHU thereafter Sukhraji Devi was

admitted to BHU and Bindu (daughter of the informant)

was admitted in a private hospital by her in-laws.

9.2.After treatment Bindu Devi got recovered while wife

of the informant died. Doctor of BHU had informed him

that there was no hope, get her discharged and keep at

the home. On 02.03.2016 after discharging from BHU

when he was carrying his wife to his house and reached

near Raja Ka Talab, she died. He reached police station

with dead body where inquest proceeding was conducted

and the dead body was sent for post mortem. Next day

autopsy was done thereafter he completed the last rituals.

This witness has also confirmed his signature and proved

the inquest (Ex.Ka-2).

9.3.PW-2, Meena, an independent eye-witness, deposed

that at about 12 noon when she was washing clothes at

the well, Om Prakash (PW-4) was taking bath there and

Sukhraji Devi (mother of the accused-appellant) was also

washing clothes there, Ramesh Yadav reached at the well

and asked his mother to clean his clothes. His mother

replied that she would wash his clothes tomorrow then

Ramesh took out a tangari from his shawl and started

beating her. Thereafter Banarasi transported Sukhraji and

Bindu to District Hospital, Gyanpur. Sukhraji died at the

16

th

day from the date of occurrence. Investigating Officer

had visited the spot. He had recovered the axe/tangari in

presence of her and Om Prakash from the house of the

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accused and had sealed in a white cloth. This witness

confirmed her thumb impression and signature of Om

Prakash on recovery memo of the axe, Ex.Ka-3. According

to her, the Investigating Officer had recorded her

statement.

9.4.PW-3, Bindu Devi, daughter of the informant and the

deceased and sister of the accused-appellant deposed that

on the day of incident at about 12 O'clock when her

mother Sukhraji Devi was washing clothes at the well,

Meena and Om Prakash were also washing clothes and

were taking bath, her brother Ramesh Yadav reached at

the well and asked her mother to wash his clothes. She

replied that she would wash his clothes tomorrow not

today. Thereafter Ramesh took out an axe from his

sweater and started beating therefrom. When she arrived

to save her, he also caused her several injuries on her

head and back from the axe. Thereafter her father took

her and her mother at the District Hospital, Gyanpur

where both were treated. Seeing serious condition of her

mother, Dr. Shahi referred her mother to BHU Trauma

Centre where she was admitted. He referred the witness

for treatment in a private hospital therefore her husband

admitted her at Orai Private Hospital where she remained

for three days and was discharged 4

th

day. Her mother

died at 16

th

day of the occurrence due to injury caused by

her brother, Ramesh Yadav from the axe. According to this

witness, she was also washing clothes at the well and the

Investigating Officer had recorded her statement.

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9.5.PW-4, Om Prakash has deposed that on 16.02.2016

at about 12 O'clock he was taking bath at the well. Apart

from him his elder mother, Sukhraji Devi and Bhabhi

Meena Devi were also washing clothes and were taking

bath. At the same time Ramesh came covering himself

with a shawl in which he had hidden an axe. He asked

Sukhraji Devi to clean his clothes, she replied that

weather is not good, let it be done tomorrow. Then

Ramesh took out an axe and started beating Sukhraji.

When Bindu, sister of Ramesh, came to save her, Ramesh

also started hitting her with the axe. On shouting of those

people they also started shouting by grabbing hold the

axe, on this Ramesh ran away and went to his house.

Sukhraji and Bindu were brought to Gyanpur Government

Hospital for treatment where treatment was started. Due

to serious condition, doctor referred Sukhraji to BHU

Trauma Centre, Varanasi. Bindu was treated at Orai

Private Hospital and Sukhraji was admitted in BHU for

about 15 days. There as the condition became serious, the

doctor discharged her on 02.03.2016. Sukhraji was being

brought to her house, she died on the way. Then body of

Sukhraji was brought to Gyanpur Police Station where

panchayatnama of the dead body was written by police.

Panchayatnama was read over by inspector and after

listening, he made signature on panchayatnama (Ex.Ka-2).

On the spot inspector had sealed the axe in white cloth

and prepared recovery memo. He signed the recovery

memo and Meena Devi put thumb impression on it.

Inspector also taken his statement.

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9.6.PW-5, Dr. Girish Chandra Rawat deposed that he was

working on the same post on 16.02.2016. On 16.02.2016

Bindu wife of Rajesh Yadav, daughter of Banarasi –

informant, aged about 30 years, was medically examined

at about 10:30 a.m. after identification. She was brought

by Mukesh Yadav. He found following injuries on her

body:

“(i) LW 3 x 2 cm, blood was coming from the wound. The

wound was on the occipital bone on scalp.

(ii) LW 7 x 2 cm, there was bleeding from the spinal back

on T-10 to L-1 lowers of spine. According to this witness

all injuries can be caused by a hard and blunt object. All

injuries referred for X-Ray and radiologist.”

9.7.After that Sukhraji Devi was medically examined by

this witness and he found following injuries on body of the

injured Sukhraji:

“(i) LW 5 x 6 cm and the oozing blood was present in the

upper part of the right temporal bone at scalp.

(ii) Sliced cut wound 7 x 5 cm at the left shoulder blood

was oozing and humerus bone was visible.

(iii) LW 8 x 6 cm at the left knee upon deep bone from

which blood was oozing.”

9.8.According to PW-5, the aforesaid injuries were

caused by some hard and blunt object. All injuries were

sent for X-Ray and to the radiologist. All the injuries were

fresh. Seeing the serious condition of the patient she was

referred to BHU, Varanasi. This witness had proved the

photocopy of injury report of Bindu Devi and Sukhraji

Devi after seeing the injury report register of District

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Hospital (which was summoned in the Court) and had

proved the same as Ex.Ka-4 and Ex.Ka-5.

9.9.PW-6, Ram Adhar Yadav, the Investigating Officer

deposed that on 16.02.2016 he was appointed

Investigating Officer of Case Crime No.24 of 2016, under

Section 324 IPC, Police Station Gyanpur, District Bhadohi

in which he copied the FIR GD memo, District Hospital

Report GD, statement of informant and Dr. Girish Chandra

Rawat. He, on the pointing out of the informant, inspected

the place of occurrence and prepared the map. After

search accused was found at his house. His statement was

recorded. He admitted his guilt. At his pointing out an axe

was recovered and the recovery memo was prepared in

front of witnesses, Om Prakash and Meena Devi. On the

basis of grievous hurt and on the statement of doctor on

16.02.2016 he added Section 307 IPC. On 02.03.2016

after death of the injured, Sukhraji Devi, Section 302 IPC

was also added. This witness has proved map and GD,

Ex.Ka-6, Ex.Ka-7 and Ex.Ka-8. He also confirmed his

writing and signature at recovery memo (Ex.Ka-3) and

panchayatnama (Ex.Ka-2), this witness has also proved

police Form-13, photonash, letter to CMO and RI and

challannash and confirmed his writing and signature on

on the papers Ex.Ka-9 to Ex.Ka-13. The truss of the axe

was opened and it has been exhibited as material Ex.-1.

Further investigation was given to SHO, Raghvendra but

it was again given to him on 29.03.2016. He recorded the

statement of FIR writer Constable Santosh Kumar Mishra

and Constable Moharrir Jitendra Kumar. He prepared

parcha no.11 and recorded the statement of Bindu Devi

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and submitted charge-sheet under Sections 324 and 302

IPC on 03.04.2016. This witness has proved charge-sheet

Ex.Ka-14. Through supplementary GD No.1 he submitted

that charge under Section 307 IPC is also made out, it

was left mistakenly while submitting the charge-sheet so

he requested that charge-sheet be treated under Section

307 IPC also.

9.10. PW-7, Raghvendra Singh, Inspector PS Gyanpur

deposed that on 16.02.2016 after lodging the FIR in Case

Crime No.24 of 2016, under Sections 324 and 307 IPC

against Ramesh Yadav, investigation was entrusted to SSI

Ram Adhar Yadav. After death of the injured on

02.03.2016, the investigation was taken back by him and

parcha no.3 was prepared by him on 04.03.2016. After

preparing parcha no.4, the axe, used in commission of the

crime, was sent to FSL, Ram Nagar, Varanasi through

Constable, Anil Yadav. On 07.03.2016 he prepared parcha

no.5, on 09.03.2016 parcha no.6 and copied the statement

of the witnesses and post mortem report. On 15.03.2016

he prepared parcha no.16 and wrote the statement of the

informant and the witnesses. On 16.03.2016 he prepared

parcha no.8 by which he again wrote the statement of the

witnesses thereafter he was transferred. Further

investigation was completed by SSI Ram Adhar Yadav.

This witness has proved paper no.18-A as Ex.Ka-16.

9.11. PW-8, Dr. Amar Bahadur Singh has done post

mortem of the deceased Sukhraji Devi aged about 58

years on 03.03.2016 at 10:30 am. This witness found that

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decomposition in body had not even started. In the post

mortem report following injuries have been mentioned:

“(i) There was a stitched injury in the upper part of the

left hand whose length was 12 cm.

(ii) 7 cm stitched wound adjacent to the neck on the left

shoulder.

(iii) On the side of left arm there was the stitched wound

whose length was 13 cm.

(iv) The injuries sustained on the left palm whose length

was 7 cm from ring finger to the palm.

(v) There was a stitched wound of 13 cm size on the left

thigh, which was 12 cm above the side of the knee.

(vi) Three parallel stitched wound on the right side of the

head on the parietal region of 8 cm, 6 cm and 3 cm with

broken bones respectively.

(vii) This witness found that alimentary tube and urinary

tube were attached. Cause of death due to septicaemia

on account of spread of poison in the body due to access

to herbs. The membrane had shrivelled. The brain was

shrunken. The membranes of the lungs were filled with

pus. Death was within one day. Cause of death was

septicaemic shock. He cannot say from which weapon

injuries were caused to the deceased. He admitted that

viscera was not sent for examination. According to this

witness septicaemia affects the body 24 hours from the

time of injuries, it depends upon which bacterium getting

involved in the infection.

9.12. PW-9, Jitendra Kumar, Constable moharrir

deposed that chick FIR in Crime No.24 of 2016, under

Section 324 IPC was prepared by Constable, Santosh

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Kumar Mishra. The case was entered in Rapat No.22 at

01:50 p.m. on 16.02.2016 by him in GD. He has proved its

copy Ex.Ka-18 and the chick FIR Ex.Ka-19 to be prepared

by Constable moharrir, Santosh Kumar Mishra through

his secondary evidence. According to him his statement

had been recorded by the Investigating Officer. In cross-

examination he denied that GD regarding lodging the case

was false and manufactured.

10.After closer of prosecution evidence, statement of

the accused has been recorded under Section 313 CrPC in

which the witness had denied the allegations. Oral and

documentary evidences produced by the prosecution, the

recovery memo and charge-sheet etc. have been denied.

He was stated to produce defence evidence but no oral or

documentary evidence has been produced in defence. In

the last he deposed that he was innocent and had been

falsely implicated. He has not said himself to be a person

of unsound mind nor had claimed exemption from trial

under Chapter XXV CrPC.

11.This appeal is decided as under:-

11.1.(I).In this case according to the informant the

accused appellant committed the crime at about 12

O'clock in the day of 16.02.2016. The informant moved

tahrir, Ex.Ka-1 same day at 01:50 p.m. after admitting the

injured in hospital, distance between place of occurrence

and police station is 4 kms. Therefore, there is no delay in

lodging the FIR. In the FIR the informant has named his

son Ramesh Yadav as accused who injured and killed his

13

wife Sukhraji Devi from an axe. He has proved the tahrir

Ex.Ka-1 and inquest Ex.Ka-2. In tahrir the informant has

not endorsed that accused had also injured his daughter,

Bindu Devi but in oral examination he has deposed that

when Bindu Devi went to save her mother, accused also

attacked on her and caused 2-3 injuries from the same axe

and both were admitted in District Hospital, Gyanpur.

From the circumstances, it transpires that the informant

was in haste and as his wife and daughter were seriously

injured, therefore, in harried manner he briefly informed

the police writing few words about the incident. The FIR

is an instrument only to accelerate the police machinery

and to start the investigation. It is not an encyclopedia,

Rotash Vs. State of Rajasthan, 2007 CrLJ 758 . In

Krishnan and another Vs. State rep. by Inspector of

Police, AIR 2003 SC 2978 it is held that the FIR filed

immediately after occurrence rules out any possibility of

deliberation to falsely implicate any person. In Motilal

Vs. State of UP, AIR 2010 SC 281 it is held that FIR

need not contain every minute detail about the

occurrence. It is not necessary that name of every

individual present at the scene of occurrence is required

to be stated in the FIR. In Mohd. Maqbool Vs. State of

Jammu and Kashmir, 2010 AIR SCW 3194 it is held

that FIR is not substantive piece of evidence, it can only

be used to corroborate its maker.

11.2. It is noteworthy that in this case the informant

is the father of the accused, deceased Sukhraji is his

mother and another injured is his real sister. It is also

pertinent to mention that informant has only one son i.e.

14

accused Ramesh Yadav as the another son Mukesh had

died prior to the incident due to cancer. Any enmity

among the accused-appellant, deceased, informant and

sister, Bindu Devi is not established, therefore, it is

concluded that the FIR has correctly been lodged by the

informant against the accused.

11.3.(II).In this case no major issue or motive appears to

be present among the parties. As per scene of the

occurrence the accused reached to his mother at the well

hiding an axe and explored the reason of causing the

incident by asking to wash his clothes and when she

replied to wash his clothes tomorrow, he attacked from

the axe. It appears that the cause of committing the crime

was something else. From the evidence of PW-2, Meena

Devi it transpires that the accused also used to beat his

wife and children due to which his wife leaving him had

gone to her parental house with her child. PW-3, Bindu

Devi, sister of the accused has also admitted that wife of

the accused lives in her parental house.

11.4. It appears that the accused-appellant Ramesh

Yadav is not a person of cool mind and due to his

aggressive behaviour his wife had left him and is living

with her parents. Admittedly, the deceased was the

mother-in-law of his wife. Accused might would be

thinking that his wife had left him due to the

shortcomings of his mother. Therefore, inventing the

reason of attack he might have killed his mother.

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11.5. In cases based on direct evidence there is no

need to prove the motive. Here the prosecution has not

put any substantive or reasoned motive but has put the

mere fact that when deceased ignored to wash clothes of

the accused-appellant same day, he started attack at her

with the axe. The fact that at the time of occurrence the

deceased was washing clothes at the well and there PW-2,

Meena Devi, PW-3, Bindu Devi and PW-4, Om Prakash

were also present, is proved beyond any doubt. In this

case the informant has named his sole real son alone.

11.6.(III). In this case the place of occurrence is the well

shown from Letter-A in the map, Ex.Ka-6. At this point

there is no difference in the evidence of PWs-1 to 4 and

the Investigation Officer, therefore, it is concluded that

this occurrence took place at place-A as alleged by the

prosecution and the place of occurrence has not been

changed.

11.7.(IV). It is a day-light occurrence based on direct

evidence of PW-1, Banarsi, father of the accused-appellant

and husband of the deceased; PW-2, Meena Devi, an

independent eye-witness; PW-3, Bindu Devi, daughter of

the deceased and sister of the accused; PW-4, Om Prakash

an independent eye-witness. There is no difference in the

evidence of eye-witnesses PWs-1 to 4. Thus it is

established that it is a case based on direct evidence and

the evidence of the witnesses proved the prosecution case

beyond reasonable doubt.

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11.8.(V). In this case occurrence occurred on 16.02.2016

whereas the deceased died at Raja Ka Talab on

02.03.2016 when she, after discharge from Trauma

Centre, BHU on account of no hope of her survival, was

on the way of her home. Thereafter he directly reached

concerned police station with the dead body where

inquest (Ex.Ka-2) was conducted. In inquest injury on the

back side of the head, on left shoulder, on left thigh and

cutting wounds on forehead and left finger were noted.

They also opined that these injuries were cause by son

Ramesh from the axe.

12.The inquest is not substantive piece of evidence. It is

only a paper to know the prima facie reason of unnatural

death of any person whose dead body is scheduled for

post mortem. It is found that there is no infirmity in the

inquest.

13.The post mortem report is not a substantive piece of

evidence but it is essential to know the actual cause of

death. In post mortem report (Ex.Ka-17) dated 03.03.2016

conducted after 15 days from the date of occurrence PW-

8, Dr. Amar Bahadur Singh has opined that deceased,

Sukhraji Devi had died due to septicaemic shock. He on

the internal and external examination of the dead body

found 6 injuries, 7

th

injury was alimentary and urinary

tube attached in the body which cannot be said to be an

injury. It appears that the septicaemia developed in

injuries caused by the accused. The injuries had not

occurred in any accident or usual course of life. From the

evidence of PW-1, informant - Banarsi, it is confirmed that

17

due to injuries caused by the accused there was no hope

of life or survival of the deceased, therefore, she was

discharged to spend few days/hours at her home, but she

died on the way before reaching her home.

14.Learned counsel for the appellant has argued that it

is not a case of Section 302 IPC but it is a case of Section

304, Part II IPC which shall be dealt with later on.

15.Recovery of axe and its memo Ex.Ka-3 has been

proved by Pws-2, 3 and 6. Such injuries can be caused

from an axe and from its blunt object.

16.Mainly, from the accused side two arguments are

advanced: firstly, that at the time of occurrence the

accused was a person of unsound mind so the act done by

him is protected under Section 84 IPC and is no offence as

it falls under the general exceptions; and secondly, that it

is not a case under Section 302 IPC but it is a case under

Section 304, Part II IPC.

17.First of all, it would be proper to discuss the facts

regarding Section 84 IPC. According to learned counsel

for the appellant, at the time of occurrence the accused

was a person of unsound mind. Section 84 IPC is 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."

18

18.This provision has been made with the reason that a

person of unsound mind is incapable of forming mens rea

that is, criminal intent. In the case of M'Naughten,

(1843) 8 Eng Rep. 718 , the accused, Daniel

M'Naughten suffered from a delusion that Sir Robert Peel,

the then Prime Minister of Britain had injured him and in

order to take revenge, he mistook Edward Drummond, the

Secretary to the Prime Minister, for Sir Robert Peel and

shot him dead. When charged of murder, the accused took

the defence of insanity. The medical evidence testified

that he was under a morbid delusion which carried him

away beyond the powers of his self-control. The jury found

him "not guilty by reason of insanity". Following principles

were laid down in the aforesaid case:-

"1. Every person is supposed to be sane and to possess

sufficient decree of reason to be responsible for his

crimes, until the contrary is proved.

2. In order to establish the defence of insanity, it must be

clearly proved that at the time of committing the crime,

the person was so insane as not to know the nature and

quality of the act he was doing, or if he did know it, he

did not know what he was doing was wrong.

3. The test of wrongfulness of the act is in the power to

distinguish between right and wrong, not in the abstract

or in general, but in regard to the particular act

committed."

19.In several cases the rule of M'Naughten case have

been followed in India, therefore, the reference has been

made.

20.The Gauhati High Court in Someswar Bora Vs.

State of Assam, (1981) CrLJ (NOC) 51 (Gau) held that

in order to seek protection under Section 84, it must be

established that "the accused, at the time of committing

19

the offence, was labouring under such defect of reason

from disease of mind, as not to know the nature and

quality of the act he was doing, or that he did not know

what he was doing was wrong".

21.In the case of Amrit Bhushan Gupta Vs. Union of

India, AIR 1977 SC 608 the term unsoundness of mind

or insanity denotes a state of mind in which the accused is

incapable of knowing the nature of his act and that what

he is doing is wrong or contrary to law.

22.In the case of Dahyabhai Chhaganbhai Thakkar

Vs. State of Gujarat, AIR 1964 SC 1563 it is held that

the criminal law recognises only legal insanity as a

defence under Section 84 IPC and not all kinds of medical

insanities. Legal insanity is one which completely impairs

the cognitive faculty of the mind, to such an extent that a

person is incapable of knowing the nature of his act or

what he is doing is wrong or contrary to law.

23.But, in this case no medical treatment papers or

medical expert have been produced and examined and

during the course of trial no application was moved to

exempt the accused-appellant from the trial. In this

respect Section 328(i) CrPC is important which is noted

herein below:-

"328. Procedure in case of accused being lunatic.—

(1) When a Magistrate holding an inquiry has reason to

believe that the person against whom the inquiry is

being held is of unsound mind and consequently

incapable of making his defence, the Magistrate shall

inquire into the fact of such unsoundness of mind, and

shall cause such person to be examined by the civil

surgeon of the district or such other medical officer as

20

the State Government may direct, and thereupon shall

examine such surgeon or other officer as a witness, and

shall reduce the examination to writing.

(2) Pending such examination and inquiry, the Magistrate

may deal with such person in accordance with the

provisions of section 330.

(3) If such Magistrate is of opinion that the person

referred to in sub- section (1) is of unsound mind and

consequently incapable of making his defence, he shall

record a finding to that effect and shall postpone further

proceedings in the case."

24.In this case accused-appellant had not moved any

application in the trial court that he being a person of

unsound mind cannot defend himself, cannot understand

the language of charge, cannot reply under Section 313

CrPC and surprising that no such ground is taken in

appeal, therefore, such plea cannot be raised now. Despite

that learned counsel for the appellant has argued the

point.

25.However, in this regard the details available on the

file are cited:

25.1.(I). That in FIR PW-1, informant – Banarsi has not

mentioned that his son accused, Ramesh Yadav was a

person of unsound mind.

25.2.(II). That the Investigating Officer has not found

the accused-appellant a person of unsound mind and none

of the witnesses stated to the Investigating Officer that

Ramesh was a person of unsound mind.

25.3.(III). That there is no medical report on record to

prove that the accused-appellant was ever or particularly

21

at the time of incident, a person of unsound mind. At the

time of framing charge on 26.05.2016 the accused-

appellant has not moved any application that being a

person of unsound mind, he is unable to understand the

charge levelled against him and he is unable to face the

trial. No application under Chapter XXV CrPC was moved.

25.4.(IV). That during the examination of the witnesses

and at the time of recording statement under Section 313

CrPC the accused-appellant or his counsel (amicus curiae)

has not claimed him to be a person of unsound mind.

25.5. PW-1, informant – Banarsi, husband of the

deceased and father of the accused-appellant has not

deposed in examination-in-chief that accused-appellant is

a person of unsound mind and was also a person of

unsound mind at the time of commission of crime. During

the cross-examination this witness has deposed that he

had admitted the accused-appellant in Varanasi for

treatment of his mental illness and the treatment was

going on since before one year. Accused-appellant,

Ramesh lived well at home and used to eat and drink.

When the informant gave him medicine, the accused-

appellant used to throw it. His second son was a cancer

patient and he was busy in his treatment, therefore, he

could not make proper treatment of the accused.

According to this witness, he took much pains for

treatment of accused but he could not be cured. He

further deposed that for the treatment of accused his

younger son Mukesh used to go to Varanasi. Except the

above questions no other suggestion regarding

22

unsoundness of the accused-appellant has been given by

the amicus curiae. This witness has also not produced any

document regarding mental illness and treatment of the

accused-appellant.

25.6.(V).PW-2, Meena Devi has also not deposed in her

examination-in-chief that the accused was suffering from

any kind of unsoundness but when the amicus curiae

asked her regarding unsoundness of the accused, she

replied that long ago father of the accused Ramesh had

got him treated at Varanasi. Accused Ramesh used to beat

his wife and children also, due to which his wife left him

with her child and went to her parental home. This

witness has not deposed that at the time of incident the

accused was suffering from unsoundness of mind.

25.7.(VI). PW-3, Bindu Devi, sister of the accused-

appellant and daughter of the deceased has not deposed

in her examination-in-chief that accused was unsound at

the time of occurrence. Learned amicus curiae for the

accused, Ramesh has not asked any question and has not

given any suggestion regarding unsoundness of the

accused before, after or at the time of occurrence. This

witness has simply replied that at the time of occurrence

her brother was not doing any job.

25.8.(VII). PW-4, Om Prakash has also not deposed in

his examination-in-chief that accused was a person of

unsound mind before or after or at the time of incident.

Neither any question regarding the soundness of the

23

accused has been asked nor any suggestion has been

given by the amicus curiae.

26.In Nanhe Khan Vs. State (Delhi Administration),

(1986) 2 Primes 328 (Del) no question was put to the

witnesses about the mental condition of the accused at

the time of occurrence nor the accused took plea in

examination under Section 313 CrPC, it was held that

plea of insanity before the Appellate Court was not

available. Here from all the witnesses even from PW-3,

Bindu Devi, sister of the accused no question regarding

insanity has been asked from the side of the accused and

no plea has been taken under Section 313 CrPC or in

appeal.

27.Similarly in Tolaram Vs. State of Rajasthan, 1996

CrLJ 8 (Raj) the accused killed his wife by bolting the

door from inside and then tried to escape. He raised plea

of insanity for the first time in appeal. It was held that the

plea was not tenable.

28.On the basis of above discussion it is concluded that

neither it is proved that accused was a person of unsound

mind at the time of commission of crime or before or after

the incident nor any ground of unsoundness had been

taken during the investigation, trial and in appeal.

Whether the accused has also committed the crime

under Section 307?

24

29.Initially the FIR was lodged under Section 324 IPC

but after death of the deceased, Sukhraji Devi Section 302

IPC was added and the charge sheet was submitted under

Sections 324, 307, 302 IPC.

30.So far as the injuries occurred to the injured PW-3,

Bindu Devi is concerned there were two lacerated wounds

which are as under:-

“(i) 3 x 7 cm on the head;

(ii) on the back of the injured in the area of 7 x 2 cm with

oozing blood.”

31.It has been proved that all the injuries were caused

by blunt side of kulhadi. Such injuries may occur from the

blunt side of the axe.

32.According to PW-5, Dr Girish Chandra Rawat, such

injuries have been caused by hard and blunt object. Both

the witnesses were referred to some other medical

institutions. PW-3, Bindu Devi was treated in Aurai.

33.Section 324 IPC is being reproduced as under:-

"324. Voluntarily causing hurt by dangerous

weapons or means.—Whoever, except in the case

provided for by section 334, voluntarily causes hurt by

means of any instrument for shooting, stabbing or

cutting, or any instrument which, used as weapon of

offence, is likely to cause death, or by means of fire or

any heated substance, or by means of any poison or any

corrosive substance, or by means of any explosive

substance or by means of any substance which it is

deleterious to the human body to inhale, to swallow, or to

receive into the blood, or by means of any animal, shall

be punished with imprisonment of either description for

a term which may extend to three years, or with fine, or

with both."

25

34.Considering the oral, medical and documentary

evidence on record, this Court is in conformity with the

conclusion of the lower court that accused had also

committed the crime under Section 324 IPC for which he

has been convicted and sentenced for 03 years rigorous

imprisonment. This Court confirms the order of conviction

passed under Section 324 IPC by the lower court.

35.The accused has also been charged under Section

307 IPC under which the lower court had convicted the

accused for 10 years rigorous imprisonment and fine of

Rs.10,000/-. Since injured, Sukhraji Devi had died and a

charge has been framed under Section 302 IPC, the

charge under Section 307 IPC remains for the crime

committed against the victim PW-3, Bindu Devi.

36.According to this Court, there is no evidence on

record that from the injury no.1 any bone of head had

been broken and from injury no.2, the spine was cut

down. It cannot be said that the injuries caused to the

victim PW-3, Bindu Devi was with such intention or

knowledge or under such circumstance that accused by

that act would have caused her death. Therefore, this

Court is of opinion that considering the nature of injuries

and the fact that after 3-4 days the victim, Bindu Devi had

been discharged, accused cannot be said to be guilty of an

offence under Section 307 IPC. In this regard evidence of

PW-5, Dr. Girish Chandra Rawat is also material, who, in

cross-examination, admitted that though he had referred

the injured, Bindu Devi for further treatment and no X-

Ray was done in his hospital. No X-Ray report was

26

produced before him for preparation of supplementary

medical report. Victim Bindu Devi has also not supplied

her X-Ray report and the report of the radiologist for

giving supplementary medical report. This witness has not

given opinion that injury caused to the victim PW-3, Bindu

Devi is of what nature, simple, grievous or fatal.

Therefore, treating the injuries caused to the victim Bindu

Devi to be simple in nature, this Court is concluding that

only case under Section 324 IPC has been proved against

the accused in respect of the injuries caused to the victim

Bindu Devi and on the basis of above discussion no case

under Section 307 IPC is proved.

Whether it is a murder or culpable homicide?

37.Now the question remains as to whether the crime

committed by the accused-appellant against the deceased

Sukhraji Devi is an offence under Section 302 IPC or

Section 304 IPC.

38.In this regard Sections 299 and 300 IPC are

reproduced herein below:-

"299. Culpable homicide.—Whoever causes death by

doing an act with the intention of causing death, or with

the intention of causing such bodily injury as is likely to

cause death, or with the knowledge that he is likely by

such act to cause death, commits the offence of culpable

homicide.

300. Murder.—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 death, or—

(Secondly)—If it is done with the intention of causing

such bodily injury as the offender knows to be likely to

27

cause the death of the person to whom the harm is

caused, or—

(Thirdly)—If it is done with the intention of causing

bodily injury to any person and the bodily injury intended

to be inflicted is sufficient in the ordinary course of

nature to cause death, or—

(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 or such injury as

aforesaid."

39.The ingredients of Section 299 IPC are:—

(1) Causing of death of a human being;

(2) Such death must have been caused by doing an act or

omission:

(i) There should be intention to cause death; or

(ii) With the intention of causing death, some bodily

injury must have been caused which is likely to result in

death; or

(iii) It should be with the knowledge that by such act, the

doer is likely to cause death.

40.The three explanations appended to Section 299 IPC

describe three situations when presence or absence of

certain factors in causing death are treated as committing

the offence of culpable homicide.

1. Act or omission .—On the basis of fact it can be

decided that an act or omission of the accused is covered

28

under the definition of culpable homicide or not and

whether death is direct result of such act or omission.

2. Intention.—Intention or mens rea is an essential

ingredient of offence of culpable homicide which can be

determined on the basis of fact and circumstances of the

case. In Jagroop Singh Vs. State of Haryana, AIR

1981 SC 1552 the Supreme Court held that while

deciding cases involving the offence of culpable homicide,

the weapons used by the accused, the injuries caused by

him to the victim and their gravity etc. along with his

mens rea should also be taken into consideration. In

Prabhu Vs. State of Madhya Pradesh , AIR 1991 SC

1069 the causing of injuries to daughter-in-law was held

to be sufficient cause for her death, therefore, the

husband and in-laws were convicted for the offence of

culpable homicide under Section 299 IPC.

3. Intentionally causing such bodily injury as is

likely to cause death.—Whether the injuries caused to

the victim were sufficient for causing death of the victim

can be inferred from the nature of injuries and act of the

accused. Where the injury is caused on vital part of the

body, therefore, death is more likely to result than an

injury caused on a non-vital part of the body. An injury

may be simple, grievous or superficial. The nature of

weapon used by the accused is also taken into

consideration while deciding his guilt [Jagroop Singh

(supra)]. Lethal weapons such as gun, pistol, revolver,

sword, spear, dagger etc. may prove more fatal than the

non-lethal weapons such as lathi, stick, bamboo, fist-blow

29

etc. Whether the bodily injury caused by the accused was

likely to cause death has to be decided objectively

keeping in view the facts and circumstances of the case.

In this case, accused had attacked his deceased mother

with the blunt part of the axe not from the sharp edged

part of the axe.

4. With knowledge that he (accused) is likely to

cause death by such act .—Clause third of Section 299

IPC provides that causing death with the knowledge that

the accused by such act is likely to cause death makes

him liable for culpable homicide. In this connection,

where such probability is almost certain then fourth

clause of Section 300 IPC would be applicable making the

accused liable for murder. As soon as it is proved that the

incident was not accidental or due to rashness but was

caused deliberately, the accused shall be convicted for the

offence of culpable homicide under Section 299 IPC,

Afrahim Sheikh Vs. State, AIR 1964 SC 1263 .

41.In Chahat Khan Vs. State, 1973 CrLJ 36 (SC) it

was held that though on the basis of single lathi blow

generally it cannot be gathered that accused had

knowledge that he can cause death of the victim but if

accused is hitting the deceased with the single lathi blow

using full force with a calculated design that it should

cause the death of the victim, he will be held guilty of

culpable homicide.

42.In Vasanta Vs. State, 1983 CrLJ 693 (SC) , the

accused attacked the deceased with a knife on his chest

30

which seriously injured his heart and lungs causing his

death. He was held guilty of culpable homicide under

Section 299 IPC.

43.The Explanation-2 of Section 299 IPC being explicit,

leaves no room for the accused to argue that death could

have been prevented on the injured or affected victim

getting medical treatment timely which would have saved

the life of the victim (deceased) and the death is direct

result of the act of the accused, it would be no defence for

him to contend that the life of the deceased could have

been saved by proper medical treatment.

44.In this case informant, PW-1 immediately transported

both the injured to the hospital. On reference to BHU he

then and there admitted the victim to the Trauma Centre,

BHU. Therefore, it cannot be said that no timely medical

treatment was provided to the deceased. Unfortunately,

septicaemia developed and due to septicaemic shock she

died.

45.In Mahavir Prasad Vs. State of Rajasthan, AIR

1991 SC 272 though accused had caused simple injury to

the victim but subsequently victim died of septicaemic

anxiety due to improper medical treatment and

negligence of the doctor, it was held that the person

causing injury cannot be convicted of culpable homicide

not amounting to murder under Section 304 IPC. In the

case in hand, several injuries were caused by the accused

out of which injury no.1 shown in Ex.Ka-5 was on upper

region of right temporal bone of scalp. Doctor advised for

31

X-Ray and radiological opinion but the patient was

referred to Trauma Centre, BHU for X-Ray, further

investigation and management where she was under

treatment upto 02.03.2016. No medical papers of Trauma

Centre, BHU have been produced. Autopsy doctor found

six stitched wounds. Injury no.6 was containing three

parallel stitched wounds on the middle portion to right

parietal region i.e. 8cm, 3cm and 6cm length, respectively.

On the basis of variation of injuries this judicial precedent

cannot be applied in favour of the accused.

46.While drawing a distinction between clause (2) of

Section 299 IPC and clause 'Third' of Section 300 IPC, the

Supreme Court in State of Andhra Pradesh Vs.

Rayavarpu Punnayya, 1977 (1) SCR 601 .

47.Elaborating the scheme of the Penal Code relating to

culpable homicide, the Supreme Court observed as

follows:-

"In the scheme of the Penal Code, 'culpable homicide' is

genus and 'murder' its specie. All 'murder' is 'culpable

homicide' but not the vice-versa. Speaking generally,

'culpable homicide' sans 'special characteristics of

murder, is 'culpable homicide not amounting to murder'.

For the purpose of fixing punishment proportionate to

the gravity of this generic offence, the IPC practically

recognises three degrees of culpable homicide. The first

is, what may be called "culpable homicide of the first

degree". This is the gravest form of culpable homicide,

which is defined in Section 300 as "murder". The second

may be termed as "culpable homicide of the second

degree", which is punishable under Section 304, Part I.

Then, there is "culpable homicide of the third degree",

which is the lowest type of culpable homicide and is

punishable under Section 304, Part II.

The question to be considered by the Court is whether

the accused has done an act by doing which he has

32

caused death of another. The question whether it is

murder or culpable homicide will on proof of such casual

connection between the act of the accused and the

resultant death."

48.In other words, it is the degree of probability of

death which determines whether a culpable homicide is of

a gravest nature or of lowest degree. The word "likely"

used in Section 299(2) conveys a sense of probability as

distinguished from mere possibility. The expression

"bodily injury.....sufficient in ordinary course of nature to

cause death", used in clause 'Thirdly' of Section 300,

connotes that death will be the most probable result of

the injury having regard to the ordinary course of nature.

49.Some relevant judicial precedents are referred

herein below:-

I. In Purna Padhi Vs. State of Orissa, 1992 CrLJ 687

the deceased by the two accused sustained multiple

injuries by sharp cutting weapons. The injury on the right

foot of the victim led to the amputation of the right foot

from the level of the ankle. The victim was removed to

hospital where 18 days after the occurrence the deceased

died due to ureamia. As to the injury on the foot the High

Court held the offence committed could not be said to be

murder. But no doubt by causing the foot injury alongwith

others with weapon like farsa and bhujali, the assailants

must have intended to cause such bodily injury as was

likely to cause death and the offence thus attracts the

mischief of part I of Section 304, IPC, the accused were

convicted under Section 304, Part I IPC.

33

II. In Subran Vs. State of Kerala, 1993 CrLJ 1387

(SC) the accused inflicted the injuries on non-vital part of

the deceased which were not found to be sufficient in the

ordinary course of nature to cause death but it was

proved that he inflicted the injury with a knowledge that

with these injuries the victim was likely to die. It was held

that this case would fall under Section 299 IPC and will be

punishable under Section 304, Part I.

III. In case of Jagwshar Singh Vs. State of Bihar, 1968

Cr App R (SC) 73 it is held that when the injury

eventually produced the diseases i.e. tetanus, peritonitis,

septicaemia etc. resulting in death, the accused must be

held to have committed culpable homicide.

IV. In Balbir Singh Vs. State of Haryana, 1996 CrLJ

2663 (P&H) the accused in a sudden fight caused

injuries to deceased who died 17 days after the date of

occurrence. Singh act of the accused was not preplanned,

he was convicted under Section 304 IPC. Though the facts

of this case are slightly different as the accused in this

case reached at the well hiding axe in his clothes.

V. In Jeevan Vs. State of Rajasthan 1996 CrLJ 3929

facts of both the cases are almost similar. In cited case the

accused was charged for causing the murder of the

deceased by the blunt side of the axe and deceased had

died three days after the incident. It was held that he had

no intention to cause death but he had knowledge that

death was likely to be caused. Hence conviction under

34

Section 302 IPC was altered to one under Section 304

IPC.

VI. Nashari Naik Vs. State of Orissa, 1998 CrLJ 3948

the accused caused lathies blows and one accused used

cycle chain to cause death of the deceased. It was held

that accused using lathies were guilty under Section 304

IPC and other under Section 323 IPC for using cycle

chain.

50.In this case though the accused had used axe but he

attacked from the blunt side of the axe. Except one wound

from sharp edged side of the axe upon the hand of the

deceased, remaining injuries are caused from the blunt

side of the axe which shows that he had no intention to

kill the deceased.

51.In this case following points are material to decide as

to whether death of the deceased is culpable homicide not

amounting to murder or murder. For determining this

question following facts and evidences must be looked

into:-

(I) Prior to this incident, the accused has never abused,

beaten or meted any kind of ill-treatment upon his

parents;

(II) He caused injuries to his mother but mainly from the

blunt side of the axe, not from the sharp edged side.

(III) When sister of the accused intervened, he caused 2-3

injuries to her from the blunt side of the axe due to which

35

she had become unable to further defend her mother.

Therefore, the accused had again opportunity to attack

upon the deceased but he did not make any further

attempt to kill his mother.

(IV) Except this fact that he used to beat his wife, there is

no other instance that the accused had committed any

offence against any one.

(V) That there is no supplementary report of doctor to

establish that injuries were grievous or fatal in nature.

The deceased was referred to BHU Trauma Centre where

septicaemia developed and pus were found in some parts

of her body. P.M. doctor opined that due to septicaemic

shock deceased had died, though septicaemia developed

during the course of treatment due to the injuries caused

by the accused.

52.Considering the over all facts and circumstances of

the case this Court comes to the conclusion that the

criminal act of accused is not an act of murder but it is an

act of culpable homicide not amounting to murder

punishable under Section 304 IPC.

53.There are two Parts of Section 304 IPC. Under Part I

an accused may be punished if the act by which the death

is caused is done with the intention of causing death, or of

causing such bodily injury as is likely to cause death.

54.Under Part II an accused may be punished if the act

is done with the knowledge that it is likely to cause death,

36

but without any intention to cause death or to cause such

bodily injury as is likely to cause death.

55.In this case the accused had used axe in commission

of crime though except one injury from the sharp edged

side of the axe rest of the injuries are caused from the

blunt side of the axe to the deceased. It could not be

proved that accused was a person of unsound mind and

also that there was any proper reason due to which he

had intention to cause death of his mother. Therefore, it

can be assumed that the accused was having knowledge

that from the attack of axe such bodily injury would be

caused which would likely cause death. Therefore, the

criminal act of accused towards the deceased is covered

under the later portion (or of causing such bodily injury as

is likely to cause death) of Section 304, Part I IPC.

56.On the basis of above discussion the conviction and

sentence passed by the lower court under Section 302 IPC

is liable to be modified under Section 304, Part I IPC and

under which 10 years rigorous imprisonment and fine of

Rs.5,000/- would certainly meet the ends of justice.

57.The appeal in respect of conviction and sentencing

under Section 302 and 307 IPC is allowed.

58.The conviction and sentence awarded under Section

302 IPC is set aside. The accused Ramesh Yadav is

convicted under Section 304, Part I IPC and ten years

rigorous imprisonment and fine Rs.5,000/- is awarded. In

37

case of non-payment of fine he shall undergo one year

additional rigorous imprisonment.

59.The conviction and sentencing under section 307 IPC

is set aside and the conviction and sentence order passed

under section 324 IPC is maintained.

60.All the sentences shall run concurrently. The

incarceration period of the accused shall be adjusted in

accordance with existing law.

61.A copy of this order be sent to the lower court

concerned along with the record of the lower court and a

copy also be sent to the concerned Jail Superintendent for

necessary compliance.

Order Date :- 22.09.2022

Shahroz

(Umesh Chandra Sharma,J.) (Anjani Kumar Mishra,J.)