- (1.) THE accused Krishna Dev Shukla has preferred this appeal to challenge the judgment and order of the trial court dated 10.01.2003 passed in S.T. No. 960 of 1998, State Vs. Krishna Dev Shukla, under Section 302 I.P.C. in Crime No. 157 of 1998, P.S. Cantt, Lucknow, whereby, the appellant had been held guilty for the offence under Section 304 (Part-II) I.P.C. in place of offence under Section 302 I.P.C. and has been sentenced to undergo a sentence of seven years rigorous imprisonment.
(2.) AS per prosecution case, on 01.06.1998, a written report was filed by the complainant Tribhuvan Singh father of the deceased Sarvesh Kumar Singh at Police Station Cantt, Lucknow alleging that on 19.06.1998 at about 7.40 P.M. Sarvesh Kumar Singh his son was standing before his door in front of the shop and accused Krishna Dev Shukla, fired at deceased Sarvesh Kumar with his licenced gun causing gun shot injuries on his head. His son was brought to the Command Hospital where he was declared dead. the occurrence had been witnessed by Vishwa Nath Singh and Chandra Bhushan Mishra and other mohalla people in electric light. On the basis of this written report, chick F.I.R. was prepared and a case under Section 302 I.P.C. was registered against the accused Krishna Dev Shukla, in which, police started investigation and after conclusion of investigation, police filed a charge-sheet against the appellant in court. On 29.08.1998, the case of the accused was committed to the court of Session for trial, by C.J.M., Lucknow. The case was transferred to Special Additional Sessions Judge, who framed charge against the accused appellant under Section 302 I.P.C. Case was later transferred to the court of Additional Sessions Judge (F.T.C.) Lucknow. The prosecution examined ten witnesses and after examination of the accused appellant under Section 313 Cr.P.C., the trial court after hearing the arguments of both side held appellant guilty of an offence under Section 304(Part-II) I.P.C. instead of Section 302 I.P.C. and awarded the sentence referred above. Hence this appeal was filed by the accused appellant to challenge the conviction and sentence. Heard learned counsel for the appellant Sri Aditya Singh and Sri M.Y. Ansari, learned A.G.A. Learned counsel for the appellant mainly rests his argument on the point that at the time of incident appellant was of unsound mind and he is not capable of understanding what he is doing and he is entitled to get the benefit of Section 84 of I.P.C., as it is clear from the judgment itself that the appellant is of unsound mind. Trial court in his judgment came to the conclusion that there might some disturbance in the mind of the accused. He also submits that from perusal of entire facts and circumstances, it is quite clear that at the time of incident, appellant is of unsound mind. No motive was assigned to the accused appellant for committing the offence. It proves that appellant fired at deceased in his insanity. Learned court without sufficient reason rejected the plea of Section 84 of I.P.C. and held accused appellant guilty under Section 304 (Part-II) of the I.P.C. Learned A.G.A. vehemently opposed the contention of the appellant's counsel and submitted that the burden of claiming benefit of Section 84 of I.P.C. lies on the accused appellant and he totally fails to discharge that burden. There is no evidence on record that at the time of incident appellant was of unsound mind and he is entitled to get the benefit of Section 84 of the I.P.C.
(3.) BEFORE considering the submission of both side, it would be convenient to notice the relevant aspect of law of the plea of insanity. At the outset, I considered the material provisions. The said provisions of Sections 299 and 84 of Indian Penal Code which are as follows:- "Section 299--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. Section 84--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." ;