Skip to content


Sukru Sa Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1973CriLJ1323
AppellantSukru Sa
RespondentThe State of Orissa
Cases ReferredSheralli Wali Mohammed v. State of Maharashtra.
Excerpt:
.....the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1 to 5 and some other witnesses that the appellant had occasional fits of insanity when he used to behave like a mad man. therefore, satisfied that the learned sessions judge is correct in his finding that it is the appellant who caused the death of his two sons. to establish a ground of insanity, it must clearly be proved that at the time of committing the act the accused was labouring under such a defect of reason from the disease of the mind as not to know the nature and duality of the act he was doing or. the mere fact that on former occasions the accused had been..........would not indicate that he was insanp or. that he did not have the necessary mens rea for the commission of the offence.after a review of the evidence on record and attendant circumstances, we feel that they do not lead to a reasonable conclusion that at the timp the accused committed the murder of his two sons, he was either insane pr was incapable of knowing the nature of the act or that he was doing what was either wrone or contrary to law.9. the appeal fails and is dismissed.panda, j.10. i agree.
Judgment:

B.K. Patra, J.

1. This appeal is directed against an order of the Sessions Judge, Bolaneir convicting the appellant under Section 302 of the Indian Penal Code on the finding that he committed the murder of his two sons aged 9 and 6 years respectively and sentencing him to imprisonment for life. The appellant is the eldest of three brothers, the two others beine Sadhu Sa P. W. 1 and Rengu Sa P.W. 2 Of the three brothers the appellant alone was married. P. W- 5 Sova is his wife. They had three childrentwo sons Fakir and Prafulla and a daughter. The appellant and his two brothers were staying in the samp house in mouza Kutumdola. On the night of 15th October, 1969 the members of the family retired to bed after dinner. P. W. 5 with her three children slept in the kitchen. She and her daughter slept on one cot and her two sons sleDt on an adjoining cot. Appellant and P. W. 1 slept on the verandah of the Dhabaehar at a distance of about two rubits off from the place where P. W- 5 and her children were sleeping. At a distance of about ten cubits from them, P. W. 2 slept on the verandah adjoining the courtyard. At about midnight. P. W- 2 heard some sound in the kitchen and got up shouting 'Chor' 'Chor'. He then found the appellant going out of the kitchen by opening the door. Hearing the shouts, P. W. 5 the wifP of the appellant got up and Meti P.W. 6 a neighbour also came to the spot with a lantern on hearing the hullah raised by P- W. 2. They all found that the two sons of the accused werp lving dead on the cot with bleeding injuries. Information was lodged at the Police Station which is eighteen kilometres off from the village at 7-30 a. m. on the next dav by P. W. 1 & at 9-30 a. m- the Sub-Inspector of Police came to the spot. He held incmest over the dead bodies and sent them for post-mortem examination. The appellant in the meanwhile had gone away from the village to mouza Charbahal which is twelve miles off from the place of occurrence and had taken shelter in the cow-shed of one Basu Sahu (P. W. 7). Basu Sahu saw him there on the early morning following the occurrence, and on being questioned, he told him that he had killed his sons and had come aw&v.; Information about the occurrence had also been sent by P- W. 2 through P. W. 4 and one Madhu of his maternal uncle in mouza Burda. They sot information at Burda that the appellant was at Charbahal. Thev went and found him there and brought him to the village and produced him before the Sub-Inspector who arrested him and seized from him under the seizure list Ext. 5 a Lunsi which he was wearing and another Lungi with which he had covered himself. These Lungis, which were subse-quantlv sent to the Seroloeist. were found to be stained with human blood. The medical Officer P. W. 9 who performed the autopsv of the dead bodies found two incised wounds 3- 1/2' x 3/4 1.1/2' & 2-1/2' x 1/2 1.1/2' over the right side of the neck of Fakir and opined that his death was due to extensive shock and haemorrhage as a result of those fatal injuries. Oh the body of Prafulla he found a deep punctured wound over the back of the left side neck and an incised wound 3.1/2' x 3/4' x 1' over the back of the left shoulder, which had cut all the underlvins soft structures and blood vessels and oPined that the death of the bov was due to profound shock and haemorrhage as a result of the fatal iniuries.

2. In due course the appellant was put on trial in the Court of Session where he pleaded not guilt v and denied having committed the murder of his two sons. He also denied being in his house on the night of occurrence.

3. After discussing the evidence on record, the learned Sessions Judge came to the conclusion that it is the appellant who brought about the death of his two sons by stabbing them with a sharp cutting instrument. In course of trial it transpired from the evidence of P. Ws. 1 to 5 and some other witnesses that the appellant had occasional fits of insanity when he used to behave like a mad man. It was therefore contended before him by the defence that havint? regard to such evidence and the fact that the appellant could not have had any motive to kill his two minor sons it must be held that he was insane at the time he committed the act. The learned Sessions Judgp reiected this contention and convicted and sentenced him as stated above.

4. The finding of the learned Sessions Judge that it is the appellant who caused the death of his two sons is not seriously assailed. The post-mortem certificates Exts. 13 and 14 coupled with the evidence of the doctor P. W- 9 leave no doubt that the death of the two bovs was homicidal and that thev died as a result of the iniuries inflicted on their persons-There is positive evidence of P. Ws. 1 and 2 the brothers of the appellant and of his wife P. W. 5 that after dinner on the night of occurrence, the appellant slept on the verandah very closp.to the kitchen inside which were sleeping P. W. o and her three children. There is the positive testimony of P. W. 2 the brother of the appellant that on hearing some noise inside the kitchen room he eot ud and found the appellant coming out of the room and goins away towards the bustee. Immediatelv afterwards it was discovered that the two unfortunate bovs were lying dead with cut injuries on their bodies. The Lunpi which the appellant was wearing and the Lungi with which he had covered himself and which were recovered from him by the Police were found stained with human blood- Immediatelv after the occurrence he was absent from the house. These circumstances are sufficient, to sustain the finding that it is the appellant who inflicted the injuries on his two sons which resulted in their death, apart from the extra-judicial confession which he had made before P. W. 7. We are. therefore, satisfied that the learned Sessions Judge is correct in his finding that it is the appellant who caused the death of his two sons.

5. It was however, vehemently contended on behalf of the appellant that having regard to the previous history of the appellant and his conduct subseauent to the occurrence coupled with the fact that he could not have had any motive to commit the murder of his two sons, it must be held that the appellant was insane at the time he committed the murder and was conseauentlv incapable of knowing either the nature of the act he was doing or that he was doing what was either wrong or contrary to law. To establish a ground of insanity, it must clearly be proved that at the time of committing the act the accused was labouring under such a defect of reason from the disease of the mind as not to know the nature and duality of the act he was doing or. if he did know it. that he did not know that he was doing what was wrong. The mere fact that on former occasions the accused had been occasionally subject to insane delusions or had suffered from derangement of the mind, or that subsequent to the occurrence he had at times behaved like a mentally deficient person is per sp insufficient to bring his case within the exemption contemplated in Section 84 of the Indian Penal Code. The antecedent and subsequent conduct of the accused is relevant only to show the state of his mind at the time the act was committed with which alone the Court is concerned. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and. therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution therefore, in a case of homicide has to prove beyond reasonable doubt that: the accused caused the death with the reauisite intention described in Section 299 of the Penal Code. This general burden never shifts and it alwavs rests on ihp prosecution- But under Section 105 of the Evidence Act the burden of Droving the existence of circumstances brine-ing the case within the exception lies on the accused: and the Court shall presume the absence of such circumstances. The doctrine of the burden of proof in the context of a Dlea of insanity has been stated in the following words by 'the Supreme Court in Dahyabhai Chha-ganbhai Thakkar v- State of Guiarat. : 1964CriLJ472 :

(1) the prosecution must Drove be-vond reasonable doubt that the accused had committed the offence with the requisite mens rea: and the burden of proving that alwavs rests on the Prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Penal Code; the accused may rebut it by placing before the Court all the relevant evidenceoral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings, (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acauit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.

6. P. W. 1 the brother of the appellant stated that sometime in the vear 1068. the appellant had assaulted his wife for which he had been prosecuted in G. R. Case No. 473 of 1968- According to this witness, it is as a result of his insanity that the accused had assaulted his wife. Another circumstance stated by P. W. 1 in regard to the appellant's insanity is that at times the latter used to leave his house for no special reason and remain outside and that his brothers used to search for him and bring him back to the house. It seems that for about a period of two vears before this occurrence the accused was not doing any work. So far as the date of occurrence is concerned, we have the evidence of P. W. 5 the wife of the aPDel-lant that on that evening he was complaining of reeling of his head. But she stated that the appellant took his meals at night and went to sleen. Hke a normal man-There is another significant circumstance that the appellant chose the dead of nisht to kill his two sons and immediately after committing the same left the house obviously with a view to escape detection. Not only did he leave the house, but at that hour of the night hp went awav to mouza Charbahal which is stated to be a place twelve miles off from the village of occurrence. There he took shelter in the cowshed of P. W. 7 till the next morning. That on being Questioned by P. W. 7 he confessed having killed his sons need not necessarily lead to the inference that he was insane.

7. During investigation by the Police, the Sub-Inspector noticed that the accused was remaining absent-minded. He, therefore, reauested the Civil Surgeon to keep the accused under observation and submit his report about his mental condition {Ext. 11). Thf Civil Surgeon sent the following report;

Sri Sukru Sa was kept under observation for the period from 29-10-1969 to 29-3-1970. Initially it was observed that he was depressed, silent absentminded and unable to answer questions. He has been conducting himself auite normally since about one month. (Ext. 12)

This report is dated 1-4-1970. As the Civil Surgeon was not examined in the trial court, we directed that he should be examined and his deposition submitted to this Court, and it has since been done. Apart from repeating what he had mentioned in his report (Ext. 12) referred to above, he has stated nothing more in his deposition which would lead to the inference that during the time the appellant was under his observation, he was insane, i There is a difference between legal in-j sanity and medical insanity. It is only legal insanity which furnishes a ground for exemption from criminal liability-There can be no legal insanity unless the cognitive faculties of the accused are as a result of unsoundness of mind completely impaired. 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.

8. Another circumstance which is pressed before us on behalf of the aPDel-lant is the complete absence of any motive on the oart of the appellant to kill his two sons. It is true that no motive has been alleged against the appellant for committing this crime, but where an act of murder is committed without motive and apparently on some kind of sudden impulse it cannot fall within the exceDtion Drovided in Section 84 of the Penal Code and cannot afford basis for accepting a plea of insanity. Adverting to such a plea, the Supreme Court in a recent decision in Sheralli Wali Mohammed v. State of Maharashtra. : 1972CriLJ1523 observed thus:

Law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most danpe-rous to admit the defence of insanity upon arguments derived merely from the character of the crime. The mere fact that no motive has been proved why the accused murdered his wife and child, or, the fact that he made no attempt to run awav when the door was broken open would not indicate that he was insanp or. that he did not have the necessary mens rea for the commission of the offence.

After a review of the evidence on record and attendant circumstances, we feel that they do not lead to a reasonable conclusion that at the timp the accused committed the murder of his two sons, he was either insane pr was incapable of knowing the nature of the act or that he was doing what was either wrone or contrary to law.

9. The appeal fails and is dismissed.

Panda, J.

10. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //